The nomination process for Supreme Court justices was always a fragile system held together by informal norms that required good faith by both parties. This is because parties in the majority in the Senate have essentially complete control over a presidential nominee’s fate, making it easy for the party that holds the presidency and senate majorities to nominate whomever they want, even an unqualified and/or extreme candidate.
While there was the technical barrier of a filibuster by the minority party that could prolong debate of a nominee’s qualifications such that a vote never took place, requiring 60 votes and therefore some support from the minority party, it was always a soft roadblock that could be removed.
Indeed, when Democrats filibustered Neil Gorsuch’s nomination in 2016 over retaliation from refusing to hold a hearing for Merrick Garland, Republicans in the senate simply removed the filibuster and pushed him through by a simple majority vote.
It is actually a bit surprising in retrospect that the good faith process of (1) respecting the filibuster, (2) nominating someone the minority party could tolerate, and (3) the party in control of the senate not flat out refusing to have a hearing for a president’s nominee if the president came from another party held up so long given nothing explicit held those norms in place.
Where we are today means then that whichever party is in control of the senate will determine the types of Supreme Court justices who get through. Presidents of the other party will be unable to push through their nominees and when a single party controls both the senate and executive branch, they have the power to set American policy for decades given increasing lifespans and the lifetime appointment policy.
This is ridiculous on numerous fronts. First, it escalates the importance of presidential elections and heightens voter polarization.
The Supreme Court, being the highest court in the land, hears contentious legal cases that drive partisanship. Voters have a strong incentive to support a president of their party solely because the president can appoint justices that align with their ideology and ignore the qualifications of the actual candidate in question. We also have evidence itself that the Court is ideological and polarized as well.
In 2016, polling data suggested that many Republicans cast their vote for Trump because of the Supreme Court. In hindsight this choice was justified through the above lens because they just have to put with 4 years of having a crazy, unfit man as president for potentially 40+ years of a conservative court dictating national policy.
Voting through this lens becomes about a singular issue over all else and increases the salience of a candidate’s appeal to the loudest voices on polarized issues the Supreme Court has addressed in the past such as Gay rights and Abortion.
This intersects with the increasing asymmetry we see in American politics on the right and the strong appeal to them of cultural issues. All a conservative candidate has to do in order to mobilize a strong voting block is appeal to the need to protect conservative values from a liberal viewpoint by maintaining control of the Supreme Court.
Second, the rule of lifetime appointments makes the court unpredictable. Justices could leave the court at any time due to health or other reasons and have a strong incentive to stay in power until the party that hews to their ideology gains control of the Senate. There is the chance justices may become unfit or unable to perform their duties but refuse to leave because of this.
The whole point of democracies and a smooth transition of power through elections is to prevent the problems that unpredictability can cause. It is one of the reasons democracy is a better system of government than autocracy in the long run.
With the complete breakdown of norms in this process it is time we reform the Supreme Court in a way that recognizes the two issues above. We should set term limits to justice appointments with the length such that each President would have the opportunity to replace justices in their term.
Term limits would reduce the stakes of presidential elections, leading to a less polarized electorate and also make the Supreme Court more predictable. It would also maintain judicial independence, a crucial factor in the functioning of the court because justices would serve a pre-determined length of time without fear of removal.
Another upside would be that the court would in theory hue closer to the ideology of the electorate because justices would swap out more often, avoiding the image of an aging court that is out of step with voter preferences.
In today’s political reality we need to reform our system to start relying less on soft norms given the polarization and tribalism in the parties and electorate. These norms will only continue to be broken as there is no incentive to hold them in place given the short term mindset and hew to tribal identity of most people.
No system was ever created perfectly in its initial design, and survival hinges on adaptation over time. Recognizing this is crucial to the future success of American democracy and fixing a broken Supreme Court nomination process is a good step.