Time for a 28th Amendment?
The government is broken and in urgent need of repair.
I know. This is an overused and bordering on cliché staple of political rhetoric.
While mostly political hyperbole, there are situations in which the need for change is real. The confirmation process for Supreme Court Justices is one of those situations. These confirmations have become increasingly politicized over the years as the process focused on the political leanings of nominees rather than the Constitutional role of the Court as a check and balance against Legislative and Executive abuses of power.
The problem is that the Constitution is mostly silent on the configuration of the Court and the appointment of Justices. The only requirements for appointment are that the President nominates and the Senate confirm.
At first glance, this may seem reasonable, but there is a serious complication embedded in this process. Under Article 1, Section 5 of the Constitution, each house is left to its own devices in determining its Rules of Proceedings. This can allow a masterful Majority Leader to control the definition of advice and consent for political advantage. The practical implication of this is that it can create a situation in which Justices can in effect be appointed singlehandedly by the President and Majority Leader with little or no bipartisan support.
When the two most partisan politicians in government control lifetime appointments to these positions, it stands to reason that the Court will become more and more political over time.
Since Marbury v. Madison, we have turned to the Supreme Court as a check against abuses of power by the Legislative and Executive branches. The role of the Supreme Court is supposed to be to objectively evaluate the arguments presented, come to a decision based on the relevance of those arguments, and document their reasoning for future review by their peers. The Legislative and Executive branches may then either accept the Court’s decision or modify their policies to accommodate the Constitutional deficiencies identified.
This process requires that Justices be first and foremost rigorous critical thinkers. While no one can ever be completely free from their personal ideologies, Justices need to be able to look past personal biases and base their decisions on the facts of the case and the relative merits of the arguments.
The Legislative and Executive branches of government have never been especially keen on defending certain key concepts inherent in the Bill of Rights, except for perhaps a fascination with the Second Amendment. Without an independent Supreme Court, it is likely that not many would enjoy the civil rights promised by the Constitution that they have today. By not providing adequate guidance, the Constitution is allowing the Court to become a quasi-legislative tool of partisan politics.
If left uncorrected, this situation will permanently destroy the integrity of the Court.
Solving this problem will require an amendment to the Constitution. The amendment should require that nominees receive an up or down vote within ninety days of nomination and a two-thirds vote for confirmation. A two-thirds majority is crucial for ensuring that the collective will of the people can prevail over party line considerations. We need to recall that before consent was defined as a simple majority, nearly all justices were confirmed with overwhelming bipartisan support. The amendment should also remove the permanency of the nine Justices’ positions and limit terms to eighteen years. This is the equivalent of three Senatorial terms. Depending on how this process is implemented, it would create a situation in which a new Justice would rotate into the Court every two years. Every President would be assured of two and only two Supreme Court appointments per term with plenty of opportunities to plan ahead for the next vacancy.
Eighteen years is sufficient to ensure an adequate degree of independence and would have most Justices retiring at the generally accepted retirement ages of 65 to 75. Retired Justices would be free to write, lecture and involve themselves in educational and mentoring activities for the future betterment of the legal profession and the country as a whole.
We must take advantage of the opportunity to correct this Constitutional deficiency now while the memory of the recent confirmation controversy is fresh in our minds.
Otherwise, the lessons learned will soon be forgotten, and we will be committing ourselves to experience déjà vu all over again.