By now, the politics of selecting the next Supreme Court justice have become clear. President Obama has pledged to fulfill his constitutional responsibility by nominating someone to fill the seat opened by Justice Antonin Scalia's death. Republicans in the Senate have pledged to block any such nomination. In short, the crisis of federal judicial selection that has plagued lower court nominations for decades is now prominently on display and, regrettably, promises more of what we have come to expect in our politics: partisanship and gridlock. But, crisis, they say, creates opportunity and this moment creates an opportunity for more meritorious politics.
More than twenty states avoid the problems that plague our federal selection process by selecting judges for their supreme court through a merit based system. This system relies on a non-partisan board of experts to choose a slate of potential judges when a vacancy occurs. This list is then submitted to the state’s governor who makes an appointment from the list. While not a perfect system, merit based systems depoliticize the process while ensuring that highly qualified (but not necessarily doctrinaire) candidates become judges.
The hardwiring of the Constitution makes a formal merit system highly unlikely. Article II, section 2 gives the president the power to nominate judges, subject to confirmation by the Senate. Article V creates a nearly impossible system of constitutional amendment such that formal constitutional reforms are inconceivable. However, the impossibility of amendment does not preclude the possibility of a workaround. Constitutional scholars have noted that political agreements are regularly established that significantly affect the operation of our constitutional system even where the Constitution itself is not formally amended. This is a unique moment for such a workaround.
Imagine the following agreement: President Obama and the GOP in the Senate agree to create a non-partisan board, consisting of highly qualified practitioners and academics selected in equal number by the president and the GOP leadership. The board would produce a list of potential nominees to the Supreme Court. From this list, President Obama pledges to advance a nominee. In turn, the Senate guarantees a prompt hearing and full up or down vote.
Why would either Obama or Senate Republicans agree to such a proposal? First, Obama has little chance of getting a nominee through the Senate and this is unlikely to change. Second, the GOP is playing longer odds to the White House than Democrats. Republican presidential candidates have only won the popular vote once since 1988. Moreover, the electoral playing field for control of the Senate is favorable for the Democrats, which creates the prospect that a Democratic president can work with a Democratic majority to appoint the next William Brennan. Third, in case appointing the next Brennan is too tempting for Democrats, it is worth remembering the country is just one economic downturn or one sizable terrorist attack away from a political landscape more favorable to Republican presidential candidates. The point is that this proposal appeals to the risk averse and both Democrats and Republicans have cause to be exactly that in the current political climate.
The benefits of this plan extend to the Supreme Court itself. Not only will the next justice be highly qualified and almost certainly a moderate (on an ideologically divided court) but they will be selected on merit, not age and ideology. And that justice will be appointed much faster than what is now likely. If Senator McConnell has his way, the next justice will not be appointed until either the spring or fall of 2017. And who knows what will happen if a Democrat wins the presidency and the Republicans continue to control the Senate? There is no deadline for filling judicial vacancies and the potential for this to drag on for years is not inconceivable. This will certainly create inefficiency in our judicial system and likely uncertainty on issues of fundamental importance ranging from environmental regulation to voting rights to the fate of public sector unions. It will also (finally) provide a way for the Court to appear less political. Scholars have noted the link between increasing politicization of the selection process and the public’s perception that the Court is more political than legal—a sizable majority of Americans believe policy trumps law in the Court’s decision-making. But scholars also note that while policy matters in decision making, so too do non-policy considerations like law itself. Decreasing the perceived politicization of the selection process will increase the public’s faith in both the Court and the rule of law.
Finally, it would be an important opportunity for our politicians to redeem the public’s waning faith in them and the institutions they inhabit. Contemporary politics makes major compromise seem impossible and too often devolves our understanding of the American political experience to red and blue, left and right. We the People need a reminder that our politicians can make compromises that the people desire and that our institutions are still sufficiently adaptable to get things done even when the system is divided. The current crisis of our judicial selection process creates just such an opportunity.
Bradley D. Hays is an associate professor of political science at Union College.
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