- 15 февраля 2016, 22:43
- POLITICO. Top Stories
Justice Scalia’s sudden passing has left the nation with a big political and legal mess on its hands. With the presidential race in full swing, Senate Majority Leader McConnell immediately announced that he would not consider anyone President Obama might nominate. McConnell will pay some political price, if nothing else for the tacky partisanship of it. But blame the game, not the player.
Democrats note that they confirmed Justice Anthony Kennedy in 1988, with just a few months to go in Ronald Reagan’s second term. That’s true, but 1988 was a long time ago, before the two parties completed their ideological sorting, before asymmetric polarization reshaped the Obama-era Republican Party. On all sides, we increasingly conceive of the Supreme Court in partisan terms. We do so because, on the big issues, that’s now the reality.
So we’re left with a political and institutional tangle. Neither party is in a position to negotiate political compromises. The recent period of conservative judicial ascendancy ended in an instant. The court is now deadlocked 4-4 on some critical issues. Things will probably stay that way until the next president takes office.
As Supreme Court analysts have already noted, the consequences of such judicial gridlock are breathtaking. In the event of a 4-4 tie, lower court rulings apparently stand. Some lower courts are dominated by Democratic appointees. Others are dominated by Republicans. Sometimes, liberal and conservative circuits have issued mutually contradictory rulings. No one really knows how the randomness and potential legal chaos will play out, on issues ranging from immigration to health care and environmental policy.
This mess is especially frustrating because it was utterly predictable. The sudden death of a major figure such as Justice Scalia might be a surprise when it happens, but we know very well that such events are going to happen from time to time – and they simply shouldn’t introduce a random element of crisis into the highest levels of American government. But they do, because our lifetime judicial appointment system – combined with our increasingly dysfunctional politics – holds America hostage to the simple realities of aging, disability, and mortality among the nine human beings who comprise our highest court.
Even if our political process worked better, lifetime Supreme Court appointments make little sense in modern American life. Such appointments create incentives for both parties to find 45-year-olds with minimal paper trails and plausible deniability for their quietly vetted partisan views. Legal giants such as Lawrence Tribe or Richard Posner are simply unviable. They are just too old.
Then there is the equally troubling incentive for justices to linger so they can be replaced by a president of their own party. The common view among veteran Supreme Court watchers was that Justice Douglas held on too long. He was not the only one.
The aging of the judiciary is not an inherently partisan issue. Both parties have a stake in an orderly and effective judicial process. I suspect that presidents and congressional leaders in both parties could use a little less drama, with institutional ground rules that provide a little more help governing effectively in an era of bitter partisanship and divided government.
Aside from issues of mental and physical function, thirty- and forty-year judicial terms are just too long. Justice Scalia was a polarizing figure for many reasons. Not least was the reality that he had been educated, socialized, and appointed in a vastly different time. Justices nominated and vetted a generation ago may be ill-equipped to rule on same-sex marriage, strong encryption, and other matters.
Scalia himself highlighted another problem. Although lifetime appointments provide valuable protections against partisan interference, they can breed an arrogance that ill-befits the office. In his occasionally intemperate and bluntly partisan behavior, Scalia became a bit too obviously accustomed to the impunity afforded him.
There is a better way, championed by of all people Texas Governor Rick Perry in his ill-fated 2012 presidential run. Perry’s proposal is satisfyingly simple: Justices would serve staggered, 18-year terms. Each four-year presidential term would thus bring two appointments.
Eighteen years is a long enough for justices to take a long view that extends well beyond any one presidency. Justices could retire at a reasonable age without fear that they are betraying the home team. There’s less of a risk that a justice will become infirm on the job. Eighteen-year terms would allow presidents to confidently appoint senior jurists who are well into their fifties or sixties. These would prevent justices from imposing the ossified views of one generation on those born in a later and different time.
Both parties have some stake in fixing these problems. Fixed terms provide no specific advantage to either party. And in the long run, neither party particularly benefits from a random political crisis of the sort we are now experiencing.
Fixed terms would not address every problem of the modern Supreme Court, but they would go a long way toward accommodating the basic realities of human life. American government depends to a remarkable extent on nine human beings, several of whom are well into their senior years. Justice Scalia’s actuarially predictable but sudden passing underscores the need to find a better way. So much in our political system is broken. Here is one thing we can fix.
Will we do it? That’s another matter. There’s little partisan payoff to this good-government structural reform. It’s not clear who would put serious resources behind it. But if we fail to address this, it is a huge opportunity lost. I fear that we’re about to find out precisely how huge an opportunity—as we navigate a fraught new landscape of costly, avoidable judicial failures until January 2017, and maybe longer.