It is sad that every vacancy on the U.S. Supreme Court sets off a political feeding frenzy in Washington and throughout the country. It is as if a new appointee is intended to be a super legislator, rather than an impartial arbiter of disputes between and among citizens and the government. The whole process is infused with political overtones. Nowadays, it happens regardless of which party is in power.
It does not have to be that way.
In 1967, the State of Idaho enacted legislation to insulate judicial appointments from politics and cronyism. It has worked well and resulted in a corps of professional judges, who decide all sorts of legal disputes, both civil and criminal, in an even-handed manner.
When there is a district or appellate court opening, a seven-member Judicial Council gathers information on judicial candidates, publicly interviews the candidates, considers input from the legal community and public, and then sends a slate of 2-4 candidates to the governor for appointment. Magistrate judges are impartially selected by local magistrate commissions.
I believe a similar process could be implemented on the federal level without transgressing provisions of the U.S. Constitution. Article 2, section 2 of the Constitution gives the president the power “by and with the Advice and Consent of the Senate” to appoint judges of the Supreme Court. It seems like the Senate could exercise its advice and consent by setting up a non-partisan process to vet and recommend a slate of highly qualified candidates to the president for appointment.
Almost any system for appointment of Justices to the Supreme Court would be preferable to the usual slugfest that the current process has become. Presidents are tempted to appoint people whose political views align with theirs on specific hot-button issues, disregarding the fact that the court is expected to deal with a much wider range of issues. The tendency is to appoint younger people, without an identifiable track record, who can serve into their dotage, disregarding the fact that this excludes a large number of older experienced lawyers with exemplary legal careers.
And speaking of dotage, there ought to be some limit on the length of service of Supreme Court and other federal judges. Article 3, section 2 of the Constitution says that federal judges “shall hold their Offices during good Behavior,” which is assumed to be for life. However, I think the constitutional framers would be surprised to see so many old folks hanging on to judicial offices.
I have never been a big fan of age limitations on public office, but I am starting to think they may have some merit. I served 12 years on the Idaho Supreme Court and figured it was time to hang it up and let someone else have a crack at it. About nine years ago, a group of distinguished legal scholars proposed that a president should be able to make one Supreme Court pick after each federal election. The longest-serving justice on the court would automatically go on senior status and sit on cases only where there were less than nine justices participating. The idea has some merit. The longer a Justice sits in the ivory tower of the Court, the greater the likelihood of losing touch with the real world.
There are a number of things that could be done to insulate the court system from our present corrosive political climate. The public increasingly views the Supreme Court as a mere extension of our dysfunctional political system and that is dangerous to our democracy. It is time for Congress to take a comprehensive look at ways to re-establish the impartiality and standing of our high court.