Justice Amy Coney Barrett showed a tin ear in choosing when and where to declare that the Supreme Court “is not comprised of a bunch of partisan hacks.” She was speaking in the presence of Senate Republican Leader Mitch McConnell, at a university facility in Kentucky that bears his name.
No one in American history has done more than McConnell to make the court look political. He did that by keeping the late Justice Antonin Scalia’s seat open for nearly a year until a Republican president could be elected, and by his haste in confirming Barrett’s nomination barely a month after Ruth Bader Ginsburg died and a mere eight days before the presidential election.
Ginsburg’s well-earned eulogies were tinged by complaints that, given her age and cancer history, she should have resigned while a Democratic president, Barack Obama, was still in office.
There’s pressure now on Justice Stephen Breyer, at 83 the eldest of the three remaining liberals (and Democratic appointees), to retire before the 2022 election that might make McConnell the Senate majority leader again with two years remaining in President Joe Biden’s term.
Breyer has been coy about when he might retire from the court, saying that he doesn’t intend to die there. But he cannot possibly harbor any illusions about what McConnell would do in that event. He should give serious thought to insuring the court against more McConnell machinations.
Term limits, Breyer quipped recently, “would make life easier for me.”
Although there aren’t going to be term limits for the court in the near future, the issue is acquiring increasing interest, especially among members of the 36-member commission that Biden appointed to consider “the merits and legality of particular reform proposals.”
The worst of those proposals is to simply expand the court. Regrettably, court-packing has cropped up locally in the special election campaign to replace the late U.S. Rep. Alcee Hastings. It could appeal to such a liberal district, but it’s hard to suppose even a Democratic Congress agreeing to set that example for a future Republican Congress.
Moreover, it’s a distraction from what should be done, on an urgent basis, to insulate the court from politics.
As Breyer said in a Harvard Law School speech recently, the court depends on “trust that the court is guided by legal principle, not politics.” Like Barrett, he asserts that it is.
But that degree of trust is incompatible with McConnell’s success in stacking the court and the resulting 5-4 vote Sept. 1 to let into effect, if only temporarily, the Texas abortion ban that flouts all the court’s precedents on that fraught issue.
The most compelling reform proposals call for appointing future justices to 18-year fixed terms and guaranteeing that each president could nominate at least two. Nominees would be confirmed automatically if the Senate did not vote on them within 180 days.
The problems are in the details: What to do with sitting justices? A Democratic bill filed in the House would use mandatory retirement to make room for new ones. Although sponsors hold otherwise, it would seem to demand a constitutional amendment — as would almost any effective reform.
Left to ordinary retirements or deaths, it could take up to 50 years to put an 18-year term limit into full effect. But the most important benefit would be realized with the first new appointment. It would lower the political stakes, depressurize the process, and encourage the nomination of older candidates like Merrick Garland, presently the attorney general, who was 63 when Obama nominated him to the Supreme Court, and Ginsburg, who was 60 when President Bill Clinton chose her.
The relative youth of Trump’s three appointees — 49, 53 and 48 — intensified Democratic resistance to them.
At one time, the average justice served almost 15 years. Since 1970, a study found, they have stayed nearly twice as long.
By providing that U.S. judges “shall hold their offices during good behavior” — in effect, life tenure — the Constitution protected them from a president’s displeasure. That foresight was vindicated by Donald Trump’s impotent fury at the court’s refusal to help him overturn the election he lost.
“It is the best expedient which can be devised in any government,” Alexander Hamilton wrote in The Federalist Papers No. 78, “to secure a steady, upright, and impartial administration of the laws.”
Nonrenewable, fixed-term appointments would serve that purpose just as well, if long enough to attract good candidates.
This editorial board strongly opposes term limits for Congress, recognizing their dismal effects on the Florida Legislature and the fact that legislators, unlike federal judges, must run regularly for reelection.
Analyzing the term-limit approach, four professors from leading law schools wrote in the April 1 Washington Post that all the major proposals “would have reduced the levels of extreme partisan imbalance over the last 80 years.
“It would have done this,” they explained, “by preventing justices from strategically retiring at times when they could maintain their party’s advantage on the court.”
And “extreme partisan imbalance” would have been reduced by half, referring to situations where at least seven of the nine sitting justices had been appointed by either a Republican or Democratic president. That prevailed 60% of the time over the last 80 years, they said.
Bitter, closely divided confirmation battles were the exception rather than the rule before Trump outsourced his selections to the right-wing Federalist Society. They should be the exception again, regardless of who inhabits the White House.
It will unquestionably be difficult, given politics as it is rather than it ought to be, for Congress to manage any significant reform. But it must try, for the nation’s sake as well as the court’s.
Both parties must make an honest effort to prevent even the perception of a high court driven by politics rather than honest differences in philosophy.©2021 South Florida Sun-Sentinel. Visit sun-sentinel.com. Distributed by Tribune Content Agency, LLC.