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Our View: Supreme Court needs an overhaul

October 2, 2018

Mere words fail to fully describe the events of Thursday and Friday in the Senate Judiciary Committee.

Stunning. Appalling. Sad. Shameful. Heroic. Grandstanding. Bitter.

But ultimately, we must fall back on the one word that best encapsulates these troubled times: Partisan.

Indeed, the most horrible truth about the gripping testimony provided by Dr. Christine Blasey Ford and Supreme Court nominee Brett Kavanaugh is that it was largely for the benefit of at most five undecided U.S. senators — and perhaps as few as two.

Nothing short of a Perry Mason-like confession on the witness stand by Ford or Kavanaugh was going to persuade any of the other 95 senators to break ranks with their political party. That’s true for both Republicans and Democrats, whose views on Kavanaugh are equally rigid.

While we applaud the efforts of Sen. Jeff Flake, an Arizona Republican who isn’t seeking re-election and who brokered the last-minute deal to require a one-week FBI investigation into the allegations against Kavanaugh, we fear this probe won’t conclusively prove or disprove anything. As was pointed out repeatedly in the hearings last week, the FBI won’t draw any conclusions — it will offer a report, and the senators themselves will render the final verdict.

When all is said and done, it is entirely possible, even probable, that Kavanaugh will become the first Supreme Court justice to be approved by a purely party-line vote. If that happens, President Trump will have his biggest victory to date by creating a Supreme Court that will lean to the right for a generation, perhaps longer.

It wasn’t supposed to be this way.

For the crafters of the U.S. Constitution, the whole point of having a Supreme Court comprised of justices with lifetime appointments was to avoid partisanship. Once on the court — or so the theory went — justices could issue decisions based strictly upon the law, rather than on the need to gain or retain political favor.

How things have changed. Today there is no more partisan, divisive process than the one by which a new justice is selected. And, once on the court (with a few notable exceptions such as Minnesota native Harry Blackmun) the vast majority of justices can be counted upon to render rulings that support the political leanings of the president who appointed them — perhaps two or three decades ago.

Keep in mind that when the Constitution was written, the life expectancy for a white male in the United States was 49 years. Of the first 10 justices on the court, just three survived 10 years, and two didn’t make it 24 months. Lifetime appointments, therefore, were far less meaningful than they are now. A 53-year-old justice appointed today would project to serve 26 years if he or she achieved today’s average life expectancy of 79.

No one should possess that kind of power for that length of time without having to answer to voters. And no president, Republican or Democrat, should have that kind of legacy.

What can be done?

We’d suggest three possibilities. None would be easy, and all would likely require an amendment to the Constitution, but it’s time for a serious discussion of that possibility.

The most obvious, least-disruptive solution (but admittedly just a half-measure) would be the restoration of the filibuster. Requiring the approval of 60 senators, rather than a simple majority, would go a long way toward ensuring that presidents nominate moderate judges who could can gain at least some support from the minority party.

Of course, such a proposal could only gain traction with the support of the majority party — which will be disinclined to reduce its power.

The bigger, bolder solution would be term limits — 12 years sounds about right — with the further provision that no president could appoint more than two justices. We’d also suggest that if a justice who voluntarily retires from the bench with three years or less remaining in his/her term, that seat should remain vacant until the 12-year term expires, to discourage politically motivated resignations.

But wouldn’t long-vacant seats create problems on the court?

Not necessarily. In fact, having just eight justices might not be a bad idea.

Nowhere in the Constitution is it specified that there must be nine justices on the court. Prior to 1869, the number ranged from five to 10. Yes, there were several times in our history when a fully-staffed court included an even number of justices.

Think about a Supreme Court with four liberals and four conservatives, or perhaps five and five. No major rulings could be issued without some degree of bipartisanship, and deadlocked votes would simply leave in place the existing laws and rulings of lower courts.

That sounds more like the Supreme Court our founding fathers intended.

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