By Steven Hill, Salon, October 27, 2020
Other countries show many ways in which a nation can de-politicize nominations to its highest court
The battle over the Supreme Court nomination of Amy Coney Barrett has put a key issue of U.S. politics with renewed vigor onto the national agenda: How to achieve a degree of bipartisan balance, as other countries such as Germany manage to do it?
At a time when Supreme Court Justices appointed by Republican Presidents vote remarkably often on key issues in a manner desired by Republicans, that is a very serious question.
An unelected partisan quasi-legislature
Charges that the Supreme Court has devolved to a de facto branch of the Republican Party are clear evidence of what is at stake. Judicial independence and fairness as well as adherence to a solidly rules-based order are a key ingredient of any solid democracy.
A Supreme Court that often appears to be just another partisan body, a peculiar, unelected legislature of nine, where “five votes beat a reason any day,” clearly is not the way to go.
How to ensure a degree of bipartisan balance?
Reforms to disentangle this judicial jungle and ensure a degree of bipartisan balance have been debated for years.
Democratic presidential candidate Joe Biden, a former longtime chairman of the U.S. Senate’s Judiciary Committee, recently proposed establishing a bipartisan commission to figure it out and recommend changes.
Although liberals and conservatives in the United States at the present time can hardly agree on something as simple as if water is wet, there is a degree of consensus among legal experts over Supreme Court reform.
Four key reform proposals
Here are the most discussed proposals that should be on the table:
1. Judicial term limits
More than any other single factor, the lifetime appointments has been responsible for bruising and bitter confirmation battles.
On the partisan chessboard, nailing down one of the nine spots is a major victory for any President, especially if you can install a young partisan who will serve for decades.
Interestingly, during the United States’ first 20 years of existence, Supreme Court justices averaged 13 years in service.
This remained true for a very long time. Typical appointees at the time were distinguished elders whose appointment was considered a capstone to a career in public service.
For example, William Howard Taft, after serving as president and Cabinet secretary, was appointed as Chief Justice at the age of 64.
However, between 1989 and 2000, the average term for a Supreme Court justice doubled, to about 26 years. By the time she died, Justice Ruth Bader Ginsberg was nearly 90 years old and had served as a justice for nearly three decades.
Justices Clarence Thomas and Stephen Breyer — now aged 72 and 82 years, respectively — also have been on the high court for nearly three decades. In recent years, the average retirement age has risen from 67.6 years to 78.8 years.
The European way
To address this, a number of well-established democracies use judicial term limits. Constitutional court justices in Germany are limited to a 12-year term, and in France, Italy and Spain a 9-year term.
There is even a helpful U.S. precedent: Judges on the U.S. Court of Federal Claims are limited to 15-year terms. Similarly, members of the U.S. Federal Reserve Board, shielded from politics because they oversee the nation’s economy, serve 14-year terms.
The length of a justice’s term is not established in the U.S. Constitution, which merely states that judges “shall hold their Offices during good Behavior.” That is pretty vague.
How to introduce term limits
As a first step to deal with the issue, U.S. Representative Ro Khanna (D-CA) has introduced the Supreme Court Term Limits and Regular Appointments Act, which seeks to limit future justices to serving one 18-year term.
To achieve bipartisan balance, the bill would also create a regular appointment process that would guarantee each president has an opportunity to nominate two justices per four-year term.
The way it is now, some lucky presidents get to tip their thumb on the scales of justice more than others. The confirmation of Barrett will be Donald Trump’s third Supreme Court appointment.
While Barack Obama got to appoint two, Jimmy Carter never got to appoint any. Term limits will ensure that the luck of the draw does not allow a single president to dominate policy via Supreme Court appointments for many decades to come, often well into the next generation.
2. Mandatory retirement age
The toxic partisanship that surrounds Supreme Court nominations in the U.S. Senate leads to other unsavory spectacles, such as the “judicial deathwatch.”
In recent years, justices have stayed into their frail and doddering years, hoping a new president might appoint a successor with similar political leanings.
Consider the recently deceased Justice Ruth Bader Ginsburg. She hung in there battling pancreatic cancer, hoping to live until a Democratic president could appoint her successor.
There is a better way
There is a better way to deal with this. Other nations require that constitutional court justices retire at a certain age. In Germany that age is 68, in Israel and Australia it is 70, in Canada it’s 75.
And all those who do not like to look abroad for useful examples should consider this: Seventeen U.S. states have established a retirement age for judges at 70 years, including Minnesota, Alabama, Wyoming and Missouri.
If this rule had been applied to the current Supreme Court, Justice Ginsburg would have retired a decade and a half ago, and three other justices, Stephen Breyer, Clarence Thomas and Samuel Alito would also have retired already.
3. Multiple appointing authorities
Beyond judicial term limits and a mandatory retirement age, it is also worth considering multiple appointing authorities.
In France, Germany, Spain and Italy, no single person or institution has a monopoly on appointments to the constitutional courts. Moreover, politicians are not the only appointing authority.
Under the German constitution, candidates for high justices are named by the Federal Minister of Justice and by a 32-member recruitment commission (of which 16 members are selected by the parliament and the other 16 by the justice ministers of the country’s individual states).
4. Bipartisan appointments
Requiring a confirmation vote of 60 out of 100 senators instead of a simple majority also holds promise.
A body as unrepresentative as the U.S. Senate should not be confirming lifetime appointments, especially by a bare 51-vote majority.
Let us not forget that the Senate is about as representative as the House of Lords in the UK. It is still overwhelmingly a chamber of elderly white guys, with only 25 female senators and 10 racial minorities (four Latinos, three Asian-Americans and three African-Americans) out of 100.
The Republican Party also is over-represented in the Senate, due to GOP strongholds in low-population, conservative states in the west and south.
States like Wyoming, with barely half a million people, have the same two Senators per state as high-population states like California, with forty million people.
The current GOP majority was elected by 153 million Americans, while the Democratic minority was elected by 168 million Americans.
Since no political party usually would have 60 votes, that requirement would nudge the parties towards bipartisan consensus. For this reason, Spain uses a three-fifths majority for judicial confirmations, and Germany uses two-thirds.
This forces those legislatures to conduct the appointment process in a bipartisan fashion, with political parties negotiating over which nominees are acceptable to both the left and right.
Reform means focus on the dispensation of justice
Of course, defenders of the status quo on the Supreme Court nomination process will undoubtedly view any suggestion of reform as an assault on judicial independence.
But the fact of the matter remains that the bitter partisanship over selecting new Supreme Court Justices that surfaces time and again in the current process has deeply undercut most notions of justice and fairness.
Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing and confirming authorities would help to decrease hyper-partisan games and crass levels of politicization.
Sensible reforms to the Supreme Court nomination process would create a modest amount of turnover, increase partisan balance and ensure that one president or party does not get to monopolize the process.
In these times of bitter polarization, all of these reforms would be good for these dis-United States of America.
Other nations, mainly European, have shown the United States the way in which nominations to the nation’s highest court can be suitably de-politicized to ensure that top non-partisan lawyers get to serve there.
Steven Hill is a journalist and the author of seven books, including Raw Deal: How the Uber Economy and Runaway Capitalism Are Screwing American Workers, Expand Social Security Now: How to Ensure Americans Get the Retirement They Deserve and 10 Steps to Repair American Democracy.