We're about to see a flood of negative ads opposing Neil Gorsuch's nomination to the Supreme Court. While such blood sport has become commonplace in today's appointment politics, it's not healthy for the court. According to a recent study, people who view television ads opposing Supreme Court nominees become less supportive of the court as an institution. It's time to consider reforms to fix the Supreme Court appointment process.
The current process has become untenable. For starters, it incentivizes lower court judges to rule in ways that are potentially problematic.
Research we recently conducted discovered that federal circuit court judges essentially audition for the president with the hopes of getting appointed to the high court. Judges who are likely contenders for elevation behave quite differently when they believe the time is ripe.
For example, a judge is about 21 percent more likely to vote in a manner consistent with the sitting president's policy preferences when a Supreme Court vacancy exists. They do this to solidify their standing with the administration and gain an edge in the contest. This clearly could have negative repercussions for litigants and for the law.
Equally problematic is that the stakes of each nomination are simply too high. Democrats threatened to block any Supreme Court nomination in the last year of President George H.W. Bush's term in office. Republicans made good on that threat when they held up Merrick Garland's nomination. What comes next as the dominoes of selection norms fall?
With justices now living and serving longer, there are fewer vacancies. And with the court increasingly injecting itself in policy disputes, pandemonium erupts when a vacancy does arise. Like Jose Canseco on a steroid-fueled rage, opponents now ferociously attack any nominee.
Age is also a problem today. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80, and Justice Stephen Breyer is 78. They are not as quick as they once were. Some justices have gone deaf and blind from old age while serving on the court. Others have lost their mental faculties completely. Regrettably, short of impeachment—which seems too big a tool for the task—the Constitution affords no mechanism for removing justices who serve longer than they are able.
Simply put, we need to improve the Supreme Court appointment process. Two possible reforms could make a tremendous difference.
Impose Term Limits on Supreme Court Justices. Instead of serving for life, justices would serve for fixed and staggered terms, leading to consistent openings. Vacancies would not come in unpredictable bunches that favor some presidents over others. Instead, they would come in regular intervals, thus relieving some of the stress of each individual nomination.
Further, a term limit would likely escort most justices off the court before they became mentally infirm. With the average age of a nominee these days at roughly 54, a 16-20 year tenure would see them leaving the court by the age of 70 to 74. Also, circuit court judges angling for higher office could decide cases more sincerely, knowing that if they miss today's window, another will open later.
Make the Justices Ride Circuit Again. Up until the early 1900s, justices traveled throughout the country to hear cases as trial judges, in addition to their appellate work on the Supreme Court. Riding circuit had a number of virtues.
First, justices interacted more with the public, which likely enhanced their public esteem. Second, riding circuit exposed justices to different parts of the country and forced them to observe firsthand the effects of their rulings. Third, it incentivized older justices, who were less enamored of travel, to retire. Having justices ride circuit again could solve many of our contemporary problems by opening up vacancies more frequently and connecting justices with the community. It would require only a statutory response rather than a constitutional amendment.
Current nominee Neil Gorsuch is undoubtedly highly-qualified and will be a thoughtful and respected justice. Of this we have no doubt. But the unenviable attacks he will endure are an unnecessary and harmful function of our current appointment politics and process. Something must give. The health of the court is at stake. It's time to give serious attention to reforming the Supreme Court appointment process.
Ryan Black is a political science professor at Michigan State University. Ryan Owens is a political science professor at the University of Wisconsin-Madison.
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