It is a sad commentary on the extreme divisiveness in our politics these days that, when the news broke Friday that Supreme Court Justice Ruth Bader Ginsburg had died, the country hardly paused to appreciate her extraordinary life of accomplishment before launching into a partisan fight over her successor-to-be. Whether one agreed or disagreed with her judicial philosophy, hers was a life of service and dedication to the country that all can and should marvel at and admire.
And, as the nation girds for another partisan battle over filling a court vacancy, we wish more could demonstrate her spirit of working with and seeking to understand those with whom she might have had serious disagreements. Among the many mental snapshots left behind by her remarkable life, we’ll hold on to the image of the court’s most liberal justice going to the opera with its then most conservative, her friend Antonin Scalia.
But the state of our political divide is now such that a nasty, wrenching fight is already brewing, as much over when a successor should be named and by whom as over who that person should be. The first issue presents itself because of the shamelessly duplicitous power play of Senate Majority Leader Mitch McConnell, who during the 2016 presidential election year held up a Supreme Court nomination for almost a year, yet now wants to ramrod whomever President Trump nominates in a month’s time, in both cases simply because he can.
This, of course, has Democrats howling, and they are right that McConnell has a double standard devoid of principle. But we find it hard to believe that, were the tables turned and a Democratic president running for reelection with a majority in the Senate, the Democrats would be proceeding any differently.
Democrats ominously threaten to take extreme action if McConnell and the Republicans follow through. They will have no ability to do so — and indeed no complaint — if President Trump wins reelection in November. But if he doesn’t, and if Democrats win control of both houses, some speak darkly of expanding the court to dilute a conservative majority or impeaching justices with whom they disagree.
This should concern all Americans, whether they like or abhor the court’s philosophical makeup. Court-packing was a dangerous idea when Democratic President Franklin Roosevelt proposed such a scheme in the 1930s, and it remains one now. Similarly, seeking to impeach a justice for retributive reasons is as divisive and dangerous for judicial independence as when House Republicans sought to impeach then-Justice William O. Douglas during the Nixon administration.
Sadly, the court in recent decades has become too much of a political football, and national elections now turn far too much on who will control filling any perceived upcoming vacancies. Also, it’s now become far too important for presidents to nominate youthful-enough justices that the nation’s hands are tied for years, if not generations, to come, no matter how the popular will of the nation might evolve over time. As a result, faith in the court and its independence has been eroded.
For well over 200 years the country has been well-served by the constitutional concept of Supreme Court justices serving unlimited terms “during good Behaviour.” For most of that period, however, the nomination process was not held hostage to partisan politics, nor did it threaten the court’s long-term credibility. Though it’s inescapable that partisan politics will remain, life tenure should not, and the time has come for Supreme Court justices to have specified terms.
One promising proposal — floated by the conservative National Review magazine and others — calls for staggered 18-year terms for each justice. With nine justices on the court, this would allow each president two picks per term. Proponents argue that a Constitutional amendment is not required, though it, too, might make sense, since what one party in control in Washington might give, another can take away. And there are doubtless other sensible proposals or variations that would also result in a court whose makeup would better reflect the country’s evolution.
Many of the states impose tenure limitations on the judges of their highest courts, without threatening their judicial independence or undermining faith in them. Given the bruising and demeaning fights over the past four years and the one that is clearly underway, the nation should do the same. Doing so won’t address the fight over the current vacancy, but it’s an idea that conservatives and liberals should agree on, perhaps even while spending a night at the opera together.