We are experiencing the first after-shocks of the 2016 election and they have been quite powerful, rocking people’s emotions, their sense of safety, for some even their sense of self.
As these reverberations retreat, more people will take comfort
in the stance that, difficult as a Trump Administration may be to deal with, it
will be gone in four, or at most, eight years.
True enough. But I
think we’ve paid insufficient attention to the damage that has already been done
to our institutions, those pillars of democracy that the republic must continue
to rest on long after Donald Trump returns to his tower.
Chief among these is the Supreme Court, the branch of government
that is supposed to be above it all, protecting us from legislative overreach and
presidential tyranny. Even in this era
of extreme politicization, the Court is still seen favorably by 45% of Americans.
Then came the death of Antonin Scalia. Most of us, whatever our political
persuasion, expected our institutions to work.
The questions were about whether the president’s nominee would be a
person of color, would he name another woman, and just how centrist would his
or her track record be. It was a
foregone conclusion that there would in fact be a confirmation process.
Instead, Senate Republicans categorically refused to advise
and consent. They tried excuses that ranged from the absurd (Obama has only eleven
months left in his term) to the extreme (the country must be protected from a
liberal Court). Meanwhile, the media,
which in the past twelve months has so often abrogated its responsibility to maintain
an informed citizenry, treated the Senate’s refusal to grant Merrick Garland a hearing
and a vote like just another entertaining chapter in the saga of our national
politics.
But like when the Titanic first hit the iceberg, neither
they nor we have yet fully understood how much damage has been done.
The nation has always demonstrated a great deal of buoyancy
in confronting the events and forces that try to tear it down. We are kidding ourselves, however, if we believe
it cannot sink. It is safe to say that
the new president will nominate someone other than Garland. When that happens, a large swath of the
country will likely see the nominee as illicit. And how can we blame them? Many will have voted for Barack Obama, with the
legitimate expectation that, having won the election, he was entitled to govern. As the old saw says, elections have
consequences.
So not only will the next nominee be seen by many as a usurper,
but the Court’s very legitimacy will be compromised. How can any decision it makes under these
circumstances not bear the stink of an election undone?
Of course, we cannot turn back the clock. But we can move to protect the future.
We must remove the
lifetime appointments of Supreme Court justices. There are a number of models that have already been lengthily
discussed. My personal favorite was described by Norm Orenstein, writing
in The Atlantic:
I would like to have single, 18-year terms, staggered so that each president in a term would have two vacancies to fill. Doing so would open opportunities for men and women in their 60s, given modern life expectancies, and not just those in their 40s. It would to some degree lower the temperature on confirmation battles by making the stakes a bit lower. And it would mean a Court that more accurately reflects the changes and judgments of the society.
That's not to say that this idea is easy to implement. For starters, it will require a Constitutional Amendment. There is also the issue of transition, which Jonathan Adler discussed earlier this year in the Washington Post:
These are legitimate obstacles that must be overcome. But the status quo is not an option. The Court has been weaponized and we must defuse it before it tumbles into the abyss, and the republic with it.
Do we temporarily increase the size of the court? Allowing a new justice every two years for 18-year terms, while leaving current justices in place? That’s allowable, insofar as the Constitution does not set the size of the Court, but it would mean that the court would go through a potentially lengthy period of consistently changing size. Justice Elena Kagan, for instance, might stay on the court for another 30 years, meaning such a proposal would create a court of 10 or more justices for decades into the future.
These are legitimate obstacles that must be overcome. But the status quo is not an option. The Court has been weaponized and we must defuse it before it tumbles into the abyss, and the republic with it.