OPINION — In general, I would say that I am not a cynical person when it comes to our government and politics as a whole. I have trust in America’s institutions and government, though never to the extent where I believe them to be infallible, too far gone to be reformed or not worth the time and effort to fix. There are many problems facing America, some of them dealing with the institutions themselves — the courts, administration, process, procedure, tradition — but the one that I feel needs the most attention at this moment is the Supreme Court.
When it comes to how we view our system of government, there is no entity more important than the Supreme Court as they are the ones who literally interpret and adjudicate cases that arise from the Federal Constitution, state constitutions, federal laws, state laws, treaties, agreements, administrative rules, administrative rulings, lower court decisions and even their own decisions. I think it would be a hot take to say that the Supreme Court is the most important branch, though a defendable one.
Two issues I have with the court are the way justices are selected and the length that they are allowed to serve on the court. The solutions I have for both of these issues also apply to district courts and appellate courts.
Regarding the first issue, I think there needs to be a better way of confirming people to the Supreme Court besides the president picking them and the Senate confirming them. Both the president and Congress are deeply political, and the process of choosing a nominee to the court reflects that. The most sought after nominee from each party is that person who will vote in cases that support the policies and agenda of the party. Often, U.S. Appeals Court judges are chosen for the Supreme Court due to their experience in the federal courts overseeing cases similar to what the Supreme Court sees (in fact, of the nine justices on the Supreme Court, eight previously served on a court of appeals, only Elena Kagan was not an appellate judge). An appeals court judge nominated to the Supreme Court will have decades of their court decisions, earlier career documentation, briefs written, articles published, interviews given and books written combed through in search of any ideological leaning that will help the party or hurt them.
After their entire career is vetted and they are nominated, the Senate Judiciary Committee will hold a hearing to give individual senators the chance to ask questions directly to the nominee. These questions are loaded and serve to tease out any ideology in the nominees. The entire process for a position that is supposed to be nonpartisan is deeply riddled with politics.
Instead of the nominate-and-confirm style of elevating people to the Supreme Court, I think a commission should be established whose job it is to search for and nominate qualified individuals to all federal courts. Membership of the commission would be given to current federal judges, to be composed of a bipartisan group of congresspeople/experts or some mix of these. The commission would find qualified candidates and send a report to the Senate requesting the candidate be confirmed. No hearings would be necessary, just an up or down vote.
Regarding the second issue, I think that term limits should be necessary for justices. Life tenure is meant to isolate justices and judges from politics and drastic social changes and keep them independent, however it sometimes leads to senility and loss of mental faculties. This occurred in both William O. Douglas and Stephen Johnson Field, the longest and second longest serving justices, respectively.
I don’t think I could come up with any quantifiably “correct” number of years that justices should serve, but if I had to put up a number, I would say that 18 is an adequate term length for a justice as it both isolates the Court from politics as well as social changes. Eighteen years on the court is long enough that four presidential elections and nine congressional elections would have taken place.
As an alternative to definite term limits, age limits could be established. Any justice reaching the age of 70 could be forced to retire and a replacement immediately named. I think this would make it so that when a justice dies, there isn’t national panic over what the balance of the court will be, because it will be known in advance more or less when there will be vacancies on the Court. In fact, a majority of states use this system of mandatory retirement for their own courts.
These are just a few suggestions for two particular issues I am interested in, though other issues with other solutions remain. Some solutions will be easier than others (e.g. some require a constitutional amendment while others require simple legislation), though in any case I hope there is real genuine reform. We cannot be cynical about nor apathetic towards fixing our government when it starts to wear down. Neither, still, can we allow it to run unmitigated. We should always be working towards a more perfect system; that work involves change.