Justice Anthony Kennedy’s retirement — coming on the heels of the chaotic, ugly realpolitik that followed Justice Antonin Scalia’s death — is a good moment to step back and realize just how broken the process for selecting Supreme Court justices now is.
In 2016, Senate Republicans responded to Antonin Scalia’s death by inventing and establishing the absurd faux principle that open seats on the Supreme Court cannot be filled in an election year. Given that America hosts national elections one out of every two years, that means, in theory, that Supreme Court seats should remain unfilled fully 50 percent of the time.
Democrats, infuriated by the GOP’s treatment of President Obama and Merrick Garland, filibustered Neil Gorsuch — the kind of broadly qualified nominee who would’ve passed easily in previous eras. In response, Senate Republicans eliminated the filibuster on Supreme Court nominations.
What we are seeing here is a case of what the political scientist Steven Smith calls “Senate syndrome”: One side breaks a norm or rule, then the other side breaks another in response, and the tit-for-tat escalates until the underlying process is in ruins. That’s now happened with Supreme Court nominations.
Here, in truth, is where the past few years have left us. The minority party no longer holds a scintilla of power over Supreme Court picks. The majority party can and will jam whomever they want onto the Court, where that person will serve for life. But in times when the Senate and the White House are controlled by different parties — which happens fairly often — there’s almost no chance that any seat on the Court will be filled.
Imagine, for a minute, that Democrats win the Senate in 2018 and Ruth Bader Ginsburg retires in 2019. What are the chances, given the precedent of the past few years, that Senate Democrats will permit Trump to replace Ginsburg and give conservatives a 6-3 majority on the Supreme Court? I’d guess somewhere between zero and zero.
This is an insane way to manage one of the most powerful institutions in American life. But the decorous, gentle equilibrium of yesteryear was also nonsensical. There’s always been something bizarre about the idea that a position as important, as long-serving, and as irreversible as Supreme Court justice should be made based on qualifications rather than ideology.
Politics isn’t a résumé competition, it’s a contest for power, and the wielding of that power has real consequences. In practice, the Supreme Court decides how elections are funded, whether abortions are legal, whether millions of people will continue to have health insurance — if elected politicians and activist groups see its composition as a matter of life and death, that’s because it often is.
Yes, Garland was relatively moderate, but if he had replaced Scalia, he would’ve swung the Court to a 5-4 liberal majority, leading to a slew of transformative rulings Republicans would find abhorrent. Yes, Gorsuch was qualified, but he has ruled in ways Democrats find awful, and the clarity of his opinions will not soften their effects.
For that reason, I don’t blame Republicans for blocking Garland. Nor do I blame Democrats for filibustering Gorsuch. And I do not expect Republicans to give Democrats a sliver of oversight over Kennedy’s replacement.
But the result of both sides taking SCOTUS nominations as seriously as they deserve to be taken is disastrous — it will become common for seats on the Court, perhaps multiple at one time, to remain open for years, and when they are filled, they will be filled with more extreme candidates.
The core problem here is the stakes of Supreme Court nominations: They’re too damn high. Candidates serve for life — which, given modern life spans and youthful nominees, can now mean 40 years of decisions — and no one knows when the next seat will open. President Jimmy Carter served four years and saw no open seats. President George H.W. Bush served four years and filled two. Barack Obama served eight years and named two justices. Donald Trump isn’t even two years into his presidency and he’s already been given two vacancies.
The result isn’t merely an undemocratic branch of government but a randomly undemocratic branch of government. And that randomness, and the stakes of seeing it play out in your side’s favor, makes it necessary to turn Supreme Court nominations into bloodsport. It creates incentives for justices to stay on the bench long after the point at which they should’ve retired, in the hopes that they can outlast an ideologically unfriendly administration — Ruth Bader Ginsburg, for instance, is 85, but it’s hard to imagine she won’t do everything in her physical power to hang onto her seat until a Democrat can replace her. It biases presidents toward nominating the youngest qualified jurist they can find, rather than the best jurist they can find.
We need to deescalate Supreme Court fights. The most obvious way to do that is to limit terms. Holding justices to a 10-year, nonrenewable term would lower the stakes of any individual Supreme Court nomination as well as make the timing of fights more predictable. An idea like this could have bipartisan support — Gov. Rick Perry proposed 18-year terms in the 2012 campaign, making an argument that I think sounds even more persuasive today:
Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices.
Implementing a reform like this would be a step toward repairing and normalizing a process that is now dangerously broken, infuriatingly random, and distorting both our politics and the judges we choose to interpret our laws.