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Judicial Confirmation Process Needs 21st-Century Updating

Supreme Court confirmations are a good time to reflect on some basic precepts of our “separation of powers— system of government. The justices are supposed to be “above the law,— but as various decisions have shown, unfortunately that is not always the case. Too often the nine black robes reveal themselves to be just another partisan legislature — but an unelected one at that. In fact, in recent years following various decisions, many frustrated legal scholars have shaken their heads and muttered: “Five votes beats a reason any day.—

The obvious partisanship of many decisions casts the Supremes in a whole new light. If it’s going to act like a legislature, then should its members remain unelected? Or if appointment remains the preferred selection process, should it be for a life term? And should the president remain the sole appointing authority, and the highly unrepresentative Senate the sole confirming authority?

Currently, the president appoints and a majority of Senators confirm Supreme Court nominees. But multiple appointing authorities and higher confirmation thresholds would bring some balance to this “judicial legislature.—

Something like Germany’s 60 percent threshold for confirming justices would give the two major political parties a say over each other’s appointments and help prevent a partisan takeover of the court.

Requiring 60 votes also would be an acknowledgement of how unrepresentative the Senate is. Of 100 Senators, only 17 are women and five are racial minorities. A strong case can be made that a chamber as unrepresentative as the Senate should not be confirming lifetime appointments — especially not by simple majority vote. Doing so only ensures that the unrepresentative features of the Senate spread to the high court.

Indeed, the subject of proportional representation on the Supreme Court — that is, the notion that the justices should, to some reasonable degree, reflect the ideological makeup of the country — is one that has not been considered enough. Of the current eight justices, it is likely that six are Republicans and two are Democrats, in a nation where partisan sympathies are fairly evenly divided and Democrats hold a decisive majority in the Congress. Six of the current justices were appointed by Republican presidents, only two by a Democratic president.

The term “liberal— always has been used rather loosely when it comes to the Supreme Court. In the narrow ideological spectrum applied to the court, Justice John Paul Stevens, who was appointed by a Republican president and voted to reinstate capital punishment and to oppose affirmative action in the Bakke case, is a liberal. So is retiring justice David Souter, who voted to uphold a ban on gay Irish groups marching in the St. Patrick’s Day parade. He also voted that federal authorities may prosecute sick people who smoke marijuana on doctors’ orders. A Supreme Court liberal is nothing like a Sen. Edward Kennedy (D-Mass.) or Rev. Jesse Jackson liberal.

In addition, Norman Ornstein (a Roll Call contributing writer) and others have written eloquently about the need for judicial term limits. As anyone who has watched the bitter partisan war that plays out over a lifetime appointment to a court that has no retirement age, it is easy to see why. Justices are serving longer and longer terms: Between 1941 and 1970, the average justice’s tenure was 12.2 years; since then, the average term has been more than 25 years. The average age of a justice leaving office has risen from 67.6 to 78.8. Currently, two justices have been on the Supreme Court for more than 25 years. At 55, Sonia Sotomayor easily could serve for three decades, as could 54-year-old Chief Justice John Roberts.

Recognizing the Supreme Court as an ideologically skewed judicial legislature helps us to understand how badly this crucial body needs to be updated for the 21st century. Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing authorities would ensure not only brilliant legal minds but also some balance of legal perspectives on the high court. Those reforms also would create a modest amount of turnover on the court and ensure that one party or president does not stack it. And that would be good for America.

Steven Hill is director of the Political Reform Program of the New America Foundation and author of 10 Steps to Repair American Democracy.

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