For most of our history, the nomination of a Supreme Court justice summoned a mere passing interest. However, in the past 30 years, political stakes have increased to such an extent that each vacancy on the Court ignites a firestorm. Too much rides on a Supreme Court nomination as the party in power seems more intent on locking down a seat as long as possible by selecting a nominee of a relatively younger age for the longest possible tenure on the bench thereby amplifying the political warfare.
The inflammatory nature of the confirmation process began in 1991 when Justice Thurgood Marshall retired, and Republican President George H.W. Bush cynically nominated then 43 year-old Clarence Thomas to fill his vacancy. Marshall, the first African American appointed to the Supreme Court, was the legal advocate in historic civil rights cases, including Brown v. Board of Education. Justice Marshall authored numerous civil liberty decisions in which he determined that the Bill of Rights embodied in our Constitution served as the protector of not only for minorities, but also for everyday working Americans in their cases against an overreaching government and all-powerful corporations.
Replacing Marshall with his judicial antithesis in arch conservative Clarence Thomas to serve as the de facto African American voice on the Supreme for potentially up to 40 years engendered a vigorous personal attack in his confirmation hearing by way of the sexual harassment charges presented by his former colleague, Anita Hill. The after effect of that nomination process still smolders today.
The road continued ‘forward’ on the path of political perdition for then 53-year old Brett Kavanaugh’s confirmation hearings. Fueled by bitterness of being deprived of President Obama’s Supreme Court appointment by the Republican-controlled Senate, the Democrats initiated the next sexual inquisition in a “he said she said” battle over allegations about events over 30 years prior.
The attempt failed, which only sharpened the blade honed still again to the razor edge of political hypocrisy. The Republicans—who thwarted then President Obama’s nomination of Merrick Garland on the eve of the 2016 election asserting that the process should wait until after the election before approving the next Supreme Court Justice—reversed course 180 degrees, and moved to push through President Trump’s nomination of 48 year-old Amy Barrett on the eve of the 2020 election.
If approved, she will replace the recently departed Ruth Ginsburg who died still donning her robe at age 87. Meanwhile, Justice Thomas—now 72—has now served 29 years on the bench, and counting. Do we really want or need a judicial system where octogenarians and oligarchs serve for decades on the Supreme Court?
Unheard of in nearly every state’s high court, this antiquated provision contained in the Article III of our Constitution begs re-evaluation. Our founding fathers incorporated a lifetime appointment provision for federal judges to preserve judicial independence by insulating them from the political tides that would otherwise remove them from office for decisions contrary to the whims of the majority. In the 18th Century, no one expected octogenarians to sit on the High Court with tenures approaching upwards to 40 years.
We amended the Constitution to limit presidents to two terms in office. Senators and Representatives at least have to be elected to serve such extended terms in office. Why insulate federal judges with lifetime tenure when a guaranteed, finite tenure would still preserve their independence?
Limiting tenure on the highest court to 20 years or age 75 (whichever occurs first) will make a disfavored nominee to the High Court more palatable to the opposition if a finite tenure on the bench remains in sight. In turn, more frequent openings on Supreme Court will temper the incendiary nature that judicial appointments now engender so that the Senate might conduct a more civil and rational confirmation process relating to a nominee’s views on the rule of law and our venerated Constitution rather than a process that seeks relatively young nominees of perceived ideology to tie up one of the nine seats on the bench as long as possible. Limited tenure on the bench will also ensure that fresh views prevail on the Court rather than ossified oligarchs.
2 replies on “Too Much Rides on Supreme Court Nominations”
As always Paul, interesting reading and deserving of consideration. A few thoughts:
I think the rancor really goes back to Judge Bork’s nomination.
I don’t remember “liberal” nominations getting anywhere near as acrimonious with such outlandish accusations as with Bork, Thomas or Kavanaugh.
Putting a black conservative on the court should not be an affront to anyone or any group. I think it is more insulting to the African-American community to assume they should have monolithic political leanings.
I agree that there should be a maximum length of time a justice can serve. Twenty years seems like a reasonable length of time, but I would not have it be longer than twenty-five years.
I vacillate on an age limit. Judging seems to me like an occupation that experience and wisdom might trump youth and vitality. Limiting tenure would prod most presidents to nominate judges in their fifties. There would be no reason to go with younger, less experienced nominees, and going older would increase the likelihood that the nominee would not get to serve their maximum number of years allowed.
I wonder about the feasibility of having justices fall into one of three judicial philosophical camps – liberal, moderate, conservative. Then upon a justice’s exit from the court, his or her replacement come from the same camp. You will have to tell me whether or not that would even be constitutionally allowed and how to determine which camp a judge falls.
And finally, I would think about codifying when a president can make a nomination to the court, allowing for whether or not the senate and president were in the same parties – for example, January 20th of an election year if different parties, and maybe 120 days before the scheduled election if the same parties.
Keep ’em coming Paul.
Valid point, David. I recall the Senate’s rejection of Judge Bork, and that tale could have been woven into the piece; perhaps my omission reveals my bias.
However, there are differences. Bork really sunk his own ship, and the Republicans had a second chance to nominate someone less strident. Thomas was affirmed; there was no second chance at someone less divisive as there was with Bork.
Second, there was a marked difference with Thomas who really had no credentials other than being an arch conservative. Trying to think of a better adjective to describe him because he is more conservative than say Justice Roberts. The word conservative standing alone does not do Thomas ‘justice’ when describing him.
Undoubtedly, Thomas is the antithesis of Thurgood Marshall, and most African Americans would agree that he is a poor choice for their de facto voice on the court–an important role given our country’s history.