A Fairer SCOTUS Process

There was very little worthy of pride about the drama the nation went through during the Justice Kavanaugh confirmation. The debate lasted long after the hearings took place, and both sides have cases for unfairness. 

I offer four specific suggestions that would improve fairness of the confirmation process for the Supreme Court of the United States (SCOTUS) based on the Senate Judiciary Committee’s advice and consent power. The Committee need only have the will to do so.

Avoid the Appearance of Partisanship

The President may nominate anyone (subject to Constitutional requirements). However, the Senate Judiciary Committee members can stipulate they would not look favorably on nominees who had worked in any Presidential administration. This could also include other highly partisan positions (regardless of party affiliation) and then carry through with that proclamation by rejecting such nominees outright. This is the Senate’s purview under the advice and consent provision of the Constitution. Citizens are subject to the rulings put forth by the SCOTUS, so it seems reasonable that citizens, whatever party affiliation, should not have a reason to question whether there is a high degree of partisanship in a SCOTUS nominee. 

Likewise, the Committee should reject outright any nominee that comes from lists by partisan organizations such as the Federalist Society. Citizens don’t get to vote for members of partisan organizations, so there is no reason for Senators to outsource their advice and consent duties to any partisan group, even if the President chooses to do so.

Nominees Should Have Transparent Records

Only confirm nominees who have significant public written records and speeches on a wide variety of Constitutional issues that cannot be deemed “privileged” and thereby unavailable for the public to scrutinize. If my first recommendation were in place, this requirement should be easy to meet.

Avoid Unduly Burdening Future Generations

Because a SCOTUS appointment is for life, only confirm nominees older than 60-years-old. This way, future generations are not unduly burdened by the influence of any one election result or “popular/trending” ideology, including “originalism.” One person’s “originalist” judge is another’s “activist” judge and vice versa. 

Yes, elections have consequences, but why should future citizens have to live major portions of their lives encumbered by the results of an election cycle held decades before they were born? Older judges also have many years’ worth of written records, judicial decisions, and speeches open for review than younger judges, thereby reinforcing the importance of the second suggestion.

Protect the Public’s Interests

FBI background checks for a high office with a lifetime appointment should be far more thorough than was recently evident. These investigations should not be under the purview of the White House. Citizens would have a lot more faith in the confirmation process if the White House and Senate were not able to constrain these investigations. Leave the decision on how to conduct the review to the FBI. 

The background checks should be to the depth necessary to unearth disparaging information well before a nominee is brought before the Senate. A deep-dive into a nominee’s past, including high school, college/university, and early career relationships would go a long way to ensure that the potential for blackmail is eliminated. Once the nomination process is in full swing, if anyone comes out of the blue with allegations of improprieties or possible criminal conduct, the FBI should be able to quickly sort out what can be debunked outright and what needs to be investigated further. 

Any concerns can be handled by the FBI, which can provide input to the Committee in private. Unresolved red flags should end the nominee’s confirmation process. The reason does not need to be made public. The nominee’s privacy would remain intact, and serious allegations that have some probability of being true but unable to be adjudicated in a court of law do not have to come to light unless they are properly filed in a court of law. 

Allegations that can be pursued through the court system would be handled separately, but the result would be the same—the nominee’s process would end and the President would need to submit another nominee for consideration. A sincerely concerned citizen with allegations against a nominee would have been given due consideration, and the nominee’s public reputation would not be harmed without due process. 

Cherish Civic Responsibility

I don’t think the above requirements are too much to require for those seeking a lifetime position on the Supreme Court. The American people need and deserve only the best of us serving in such a hallowed position. If these requirements of mine are adopted, I realize this will mean that some very bright jurists will never be confirmed for the Supreme Court, but life is not fair.

One often has to make decisions at a young age that will change the course of one’s future in ways that are incalculable. If you doubt that, visit a cemetery and look at the graves of young people who died in our nation’s wars. 

No one is entitled to be a Supreme Court Justice. 

It is an honor and position that must be earned by more than graduating law school, checking boxes on a form, answering some questions from a handful of Senators, or charming a President. If you want such an honor, ensure that you do not place yourself in compromising positions and refuse positions that mark you as highly partisan. You must also be willing to have your personal life subjected to intense scrutiny commensurate with the level of trust you, as a nominee, are asking of all the citizens you hope to serve. 

Imagine how refreshing it would be if parents instilled civic responsibility in their children, especially if they want to pursue a profession in government services as adults. Above all, the public must not be given reason to suspect that a Supreme Court Justice is just an extension of a President or a specific political persuasion. The system only works if there’s as much impartiality in the Court as possible. 

Finally, in recent years, much has been made about what is fair to the President and the nominee, but fairness to the citizenry is one element that has been missing in much of the discourse concerning SCOTUS confirmations. I truly believe that if the above suggestions were implemented, the result would be a fairer process and the public’s confidence in it would be improved.