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Supreme Shortcomings - Can We Fix Our Broken Judicial Selection System?

On April 14, 1865, President Abraham Lincoln invited General Ulysses S. Grant and his wife Julia to join him and his wife Mary at the theater. Grant, newly crowned war hero who had recently accepted the surrender of the Confederate armies, demurred. He knew that his wife was uncomfortable around Mrs. Lincoln, who had harangued Julia, as well as the wives of other generals and cabinet secretaries. Instead, the Grants left town to visit their children in New Jersey.

You probably know what happened that night at Ford’s Theater. Grant would forever regret declining the President’s offer on that fateful evening.

It might be argued that the assassin’s bullets would have found Grant as well as Lincoln, and that the country would have thus been deprived of its two most important leaders. But it is also plausible that Grant’s presence might have affected things differently. Maybe his keen battlefield instinct would have sensed trouble. Or, more likely, several of his constant traveling aides might have been stationed outside the theater box, causing John Wilkes Booth to turn around and go home.

From small decisions huge consequences arise. Lincoln’s death was a prime factor in the failure of Reconstruction in the South, which ushered in a century of oppression and segregation. Had Grant gone to the theater, might things have turned out differently?

Or consider this personal decision by Justice Thurgood Marshall, in July 1991: He decided to retire rather than await the next presidential election. At the time, Supreme Court nominations were far less contentious than they are now, but that would change in a hurry when President George H.W. Bush named Clarence Thomas to replace Justice Marshall. Had Marshall waited, the pick could have gone instead to Bill Clinton. Think of how almost three decades (and counting) of jurisprudence would have been altered, not to mention the destructive politicization of Supreme Court nominations that Thomas’ selection represented.

Now we are faced with situation brought on by Justice Anthony Kennedy's retirement announcement, which assures that the current president will name his replacement. This is a president who we know is not much of a scholar of the law but a true believer in bolstering his personal standing with his “base” by selecting someone vetted by the Federalist Society and the Heritage Foundation.

Unlike Thurgood Marshall in a more innocent time, Justice Kennedy knows exactly what he is doing. There is no political pathway by which Democrats can oppose the next nomination, thus making it likely that the Supreme Court will veer right and tilt that way for a long time. Thus has the future of our country been determined by the seemingly innocuous decision of an 81-year old justice to step down from the bench.

To me, this is clear evidence of a broken system. When a single justice’s retirement has such profound and decades-long consequences for human rights and executive power, that’s a systemic problem. When an 85-year old justice, with a history of cancer, has to hold on for dear life and make sure to stay in her seat in the hopes of seeing a Democratic president take office, that’s a systemic problem. When every nomination is a fight to the death, and when presidents vow to nominate not just someone whose judicial philosophy pleases their base but who is also young enough to stay on the bench for potentially four decades, that’s a systemic problem. We are simply doing this wrong, creating unnecessary antagonism to an already boiling-hot political schism.

Look at the examples of some other countries. In Australia, since 1979, the Attorney-General has been required to consult with the Attorneys-General of the states and territories of Australia about appointments to the court. In India, a judge is appointed to the supreme court by the president on the recommendation of the collegium, a closed group of the Chief Justice of India, the four most senior judges. In the United Kingdom, a selection commission is to be formed when vacancies arise. Similarly, Israel has a judicial selection committee. And how about Norway, a country whose citizens were invited by our current president to emigrate to the US--there, applicants’ qualifications are assessed by the Judicial Appointments Board, which is composed of three judges, one lawyer, one legal professional employed by the Civil Service and two public representatives.

While our Constitution is clear that the president nominates and the Senate advises and consents, there is room for some modification to this process. Nothing in the constitutional language precludes us from creating a commission made up of prominent lawyers, judges, and private citizens. Such a commission could consider the qualifications and backgrounds of potential nominees, and not focus solely on whether they meet some sort of political test, based on whichever party is in power when a justice resigns or dies. The president wouldn’t be required to pick someone that such a commission approves, but it would be politically difficult to do so.

Furthermore, as I mentioned in my last post, our Court is often made up of individuals who are blinded by their personal educational constraints (Harvard or Yale), economic privilege, and personal or political bias. So why not have a judicial commission look into whether these nominees have made some type of public service contribution beyond mere corporate law and comfortable spots on appeals courts?

Here is another proposal: an age limit on justices. Australia, Japan, UK, Norway, and Israel are among the countries that mandate retirement at age 70, while in Brazil and Canada the age is 75. Why am I proposing this when two of the more liberal Supreme Court justices are over 80? Well, my assumption is that if we had such a requirement it wouldn’t take effect for some time. Limiting justices' time on the bench would make the nomination process more regular and standardized, while removing the gigantic political stakes of fighting over justices who figure to participate in decisions that will influence two generations of Americans.

My main point is that our judicial nomination system is based on arbitrary factors like the health and whims of individual justices, has been taken over by political considerations and is entirely cut off from the citizens on whose behalf it is supposed to rule. Could there be a better way? You may not like my suggestions but if not, please share some of your own.

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