Building a Balanced Supreme Court

May 17, 2010, New York Daily News

Oftentimes, American-style partisanship results in Republicans and Democrats fighting like two mindless gamecocks in the ring. Well, take your seats, because nothing brings out this combative behavior more than a Supreme Court nomination.

President Obama’s nomination of Elena Kagan to the Supreme Court will kick off the usual bloodletting across the partisan divide. At 50 years of age, Kagan would be the youngest justice and, since justices are appointed for life, she easily could serve for more than three decades.

More than any other single factor, this “until death do we part” constitutional requirement has been responsible for bruising and bitter confirmation battles. Opponents already are searching high and low for some long-lost letter, speech or paper that embarrasses Kagan – or gives a clue as to her true mind-set.

If previous nominations are any guide, the senators will parry back and forth across the divide of the Senate Judiciary Committee, with the nominee saying as little as possible, an unsatisfying defensive dodge. The nation will watch bewildered and wonder, “How can a person with no apparent opinions be fit for the highest court in the land?”

We can do better.

This will be Obama’s second Supreme Court pick, and with the advanced age of several other justices, Obama may have a chance to appoint more. If the luck of the draw goes his way, he’ll overturn the partisanship of what is now a Republican-dominated court. Six of the current justices were appointed by Republican Presidents, and only three by a Democratic President.

Of the current nine justices, it is likely that six are Republicans and three are Democrats, in a nation where more Americans call themselves Democrat than Republican, and where Democrats hold a decisive majority in the Congress.

Of the 13 justices who served during the 20 years of the Rehnquist Court, 10 were appointed by Republican Presidents and only three by a Democratic President. But Republicans have not always gained from this arrangement. President Franklin Roosevelt appointed seven of nine justices, packing the court with Democratic-leaning judicial allies. Then again, luckless Democrat Jimmy Carter never had a chance to appoint a Supreme Court justice.

Equally bewildering, the term “liberal” always has been used rather loosely when it comes to the Supreme Court. In the narrow ideological spectrum applied to the court, a Supreme Court liberal is nothing like a Nancy Pelosi or Jesse Jackson liberal. The justice that Kagan will be replacing, John Paul Stevens, has been considered a staunch part of the liberal side of the court, even though he was appointed by a Republican President and voted to reinstate capital punishment and to oppose affirmative action.

His former benchmate, David Souter, also was considered a Supreme Court liberal, even though he was appointed by a Republican President and voted to uphold Boston parade organizers’ refusal to allow a gay Irish group to march in the St. Patrick’s Day Parade, and also voted that federal authorities may prosecute sick people who smoke marijuana on doctors’ orders.

Previously, the Warren Court had a reputation as being stacked with liberals, but the “liberal” Chief Justice Earl Warren was a staunch Republican appointed by a Republican President who as governor of California had supported the internment of Japanese-Americans during World War II.

It’s long past time to make the court more representative of the country it serves.

Indeed, the subject of more proportional representation on the Supreme Court – that is, the notion that the justices should, to some reasonable degree, reflect the ideological makeup of the country – is touchy, as defenders are quick to point out that this is a court, not an elected body.

But seeing the Supreme Court clearly as an ideologically skewed judicial “legislature” with nine members helps us to understand how badly this crucial body needs to be reformed and updated for the 21st century.

Judicial term limits and mandatory retirement ages would ensure not only brilliant legal minds but also some balance of legal perspectives on the high court. Those two reforms alone would create a modest amount of turnover and ensure that one party or President does not stack the court. Norman Ornstein, a scholar with the conservative American Enterprise Institute, has written in favor of 15-year term limits for Supreme Court justices and federal appeals court judges, as well as staggered terms.

That combination would create an opening about every two years, so each President serving a full term likely would make two appointments, providing more of a long-term ideological balance to the court. That, says Ornstein, “would take away the variability that allows some Presidents to fill several vacancies in one term, while other occupants of the Oval Office can go two terms without filling any.” Presidents could have their say, but the luck of the draw would not be able to let them dominate policy into the next generation.

And that, in these times of extreme partisan polarization, would be good for America.