Another bruising confirmation battle is upon us, making apparent just how court-centric the political life of our nation has become. We don’t need to recount the sordid tale of political recriminations here; it should suffice to say that in 2020, power to control who is on the nation’s courts, it seems, subsumes all other questions. If you capture the United States Supreme Court, you win in American politics. A new justice on the nation’s highest court has come to mean more than who controls the House, the Senate, or the presidency.
In short, the stakes are unbelievably high—too high.
That is why earlier this year we convened a task force of former federal and state judges, as well as experts from the right and the left, to take stock of the judicial selection process. Each possesses a firm belief in the need for a fair and independent judiciary in our constitutional democracy—and are willing to consider all manner of changes to the status quo to preserve that.
The role of the federal courts—and the Supreme Court in particular—in modern life is significant. The courts may overturn the decisions of a duly elected president or strike down a law passed by a majority of Congress. They do, indeed, have enormous power—and whether this is for good or ill is often in the eye of the beholder.
And over the course of several recent presidential administrations and congressional sessions, we have also watched the norms and practices that constrain the power of the president and the Senate over the judiciary corrode at a rapid pace. The rank partisanship of the present era has also laid bare some rather large cracks in the constitutional and statutory structure governing the courts. On top of that, the outsized role of the judiciary has led to a proliferation in spending by unaccountable and opaque interest groups to influence the judicial selection process, placing even more pressure on Congress to put the outcome above a meaningful process, therefore failing to protect the institutional legitimacy of the courts.
While the present zero-sum nature of the judicial confirmation process may yield very specific results for those benefiting from it, this is an incredibly short-sighted strategy. Once the mainstream public comes to believe that the courts serve the interest of a limited few, interpreting law and deciding cases outside of the norm, their legitimacy disappears. And with it, so too will the willingness of elected leaders and the public to follow court orders.
It doesn’t have to be this way. Scholars and experts have set forth a variety of solutions to make federal judicial selection less radioactive. Most notably, some have proffered an end to life tenure or imposition of age limits; others have suggested a restructuring of the Supreme Court, whether through a “lottery” system, a circuit court panel structure, or expansion or contraction of the number of justices on the high court, to name a few.
The task force also recognizes that the concerns about the federal courts’ legitimacy emanate not only from the conduct of the president and the Senate when it comes to judicial selection, but also the lack of accountability measures for judicial misconduct. Reform advocates have proposed that the Supreme Court be subject to the same code of conduct as all other federal judges (we agree), and have opined that more robust rules should govern financial disclosures and stock ownership by all federal court judges, accompanied by meaningful recusal requirements. The task force is also looking at solutions that have taken hold in the states, as many jurisdictions have grappled with obstacles created by state officials and voters affecting their independence.
In 1998, we at The Constitution Project observed that it is incumbent on officials to exercise leadership and self-restraintconcerning the courts to protect their independence—two imperatives that are in grievously short supply in our present political environment. Accordingly, it is time to innovate and consider new options (and old ones previously thought inconceivable) to preserve an independent and legitimate third branch in the 21st century.
Our task force members agree that preservation of our system of checks and balances requires a critical examination of the components of our political and legal system that empower and influence the courts, and, ultimately, their legitimacy. Their assignment will be to chart a new path to preserve the judiciary that will help guide public discussion and debate for years to come. They are examining both procedural and transformative changes that may be required to restore and protect the public’s faith and belief in the legitimacy of our nation’s judiciary.
We plan for the task force’s recommendations to be available for the new Congress in 2021.
The Constitution Project works to combat the increasing partisan divide regarding our constitutional rights and liberties.