Opinion: Here are three ways to fix the Supreme Court nomination process
In the 20th century, most nominees were confirmed by a bipartisan vote. Today, the votes are mostly partisan. That means Americans have a serious problem
For the eighth time in the last two decades, a Supreme Court nominee has been confirmed by the U.S. Senate. But those confirmations have been vastly different from those in the preceding century. That’s because, in each case, the vote to confirm fell almost completely on party lines.
That was rarely the case in the 20th century. And that means Americans have a serious problem: Supreme Court nominations are too partisan.
This problem leads to a fundamental question: How can the process be fixed? Here are some suggestions:
- Remove partisanship by adopting a merit nominating system. Rather than the president nominate someone urged by partisan interest groups or senators, a judicial nominating committee (consisting of senior judges and attorneys) should be created to recommend a short list to the president. The president, then, would choose one of those individuals to nominate. These would be well-qualified individuals rather than those favored by partisans. This kind of system works in Canada and moves the Canadian Supreme Court judicial selection process out of the hands of partisans.
- Guarantee a thoughtful, deliberative process. The Senate should adopt rules for the disposition of Supreme Court confirmations. These would apply regardless of which party is in power in the White House or the Senate. The details would include not only the rules of the process (how, when and what information is collected), but also a schedule for confirmation hearings, committee deliberation, and floor debate and vote. The rules would dictate that the process cannot be short-circuited, as it was in 2020 with Amy Coney Barrett. But neither can it be elongated or ignored, as it was with Merrick Garland.
- Take the spectacle out of Senate Judiciary Committee hearings. Unfortunately, hearings have become nothing more than opportunities for senators to score political points with partisan groups and activists.
In 2020, Sen. Dianne Feinstein, D-Calif, accused Barrett of using her Catholic faith to make decisions. This year, Sen. Marsha Blackburn, R-Tenn., asked Judge Ketanji Brown Jackson to define the word “woman.”
Sen. Lindsey Graham, R-S.C., routinely asks inappropriate questions. In 2010, he asked Elena Kagan where she was on Christmas Day the previous year, to highlight the fact that she was Jewish and not celebrating Christmas. He asked Brown to rate her religious beliefs on a scale of 1 to 10.
One way to reduce the spectacle is to close the hearings to the public. Senators will not grandstand if they do not have a camera. Another is to have the committee majority and minority counsel, not the senators, ask the questions. If those are impractical, yet another is to set a committee rule on what questions are and are not legitimate. The committee chair would have the power to rule a question out of bounds and tell the nominee that he or she need not answer. These would be personal questions unrelated to the law or work as a judge, such as religious beliefs or affiliations, youthful use of recreational drugs, marital issues, etc.
Those changes are achievable by either the president, the Senate, or both. They could be accomplished through a rule change or perhaps legislation to create a judicial nominating commission.
A more significant change also would reduce the tensions over a Supreme Court nomination. That is a constitutional amendment limiting justices to nonrenewable 18-year terms. That means justices could not serve for over two or three decades. And, with nine justices, confirmations would occur on a predictable schedule rather than at the whim of the retiring justice. That change would reduce the power of an individual justice and the significance of each confirmation.
The Supreme Court nomination process is critical to determining who serves on the highest court in the land. But the way the system works now does not serve us well. It tarnishes the court, the justices and our whole judicial system. It is time to find solutions to reduce the partisanship in this selection process.
Richard Davis is the author of “Supreme Democracy: The End of Elitism in Supreme Court Nominations” and “Electing Justice: Fixing the Supreme Court Nomination Process.”