Now that tempers have calmed and some time has passed since the contentious questioning and confirmation of Brett Kavanaugh to the U.S. Supreme Court — a process Sen. Susan Collins deemed a “dysfunctional circus” — it seems appropriate to explore ideas for preventing a repeat performance.
Under the current system, senators are left to decide on their own what the Constitution's provision for “advice and consent” on presidential appointments actually means. But we can spell it out: A Supreme Court Law would resolve controversies before confirmation or head them off altogether.
To start, such a Supreme Court Law could require that the Senate fill a vacancy within two months following the departure of a sitting justice by death or retirement. That would eliminate another scenario like the Senate’s failure to consider Judge Merrick Garland’s nomination in 2016.
A Supreme Court Law could provide that no appointee may serve more than one long term, say of 12 years. That would be long enough to insulate the justice from politics but not make the justice a lifetime oracle of law — or the population subject to the whims of one party for decades. Each individual appointment would become less crucial.
A Supreme Court Law could impose a mandatory retirement age. That would help assure that justices are in decent health and are in touch with younger generations. The Constitution says that justices shall “hold their Offices during good Behaviour,” but that does not preclude a term limit or mandatory retirement age.
A Supreme Court Law could provide that the president offer not just one nominee but a choice of several. How often did we hear it said that the confirmation process is a “job interview” and not a trial? What recruitment committee presents only one candidate on a take-it or leave it basis? The Senate could then vote on which candidate it thinks best rather than try to disqualify one it does not like.
Why should a president should get to name as justice whomever he or she likes? The president is not an absolute monarch, and the justice is not the president’s servant but a justice for all of us. The justice ought to be satisfactory, not just to the president’s base, but to most of us. A Supreme Court Law could provide for a super-majority — say 60 percent or two-thirds — for confirmation to assure broader support.
Appointments to the Supreme Court are ferociously fought over because the other branches of government have allowed the court to assume great power and decide for itself what if any limits there are to its power. The combative hearings have led to concerns that justices may be biased. In the present system whether a justice is excused is for the justice himself to decide. That should not be the case. The other justices themselves could determine the issue. There is already a bias law for lower federal courts.
Some may fear that such a law would go further and address other issues that the court has largely kept to itself, such as jurisdiction and the effect of precedents. But that need not be a bad thing. We would not need to interrogate candidates on how they would handle certain issues if a Supreme Court Law, adopted by the people’s legislature, pointed the court in the right direction and limited the scope of its decisions. A court that can put a law out of force as unconstitutional ought itself be subject to a law.
Senators agreed that we have a rule of law. As Justice Scalia once said, a rule of law is a law of rules. Our government of laws should have a Supreme Court Law.
James R. Maxeiner (firstname.lastname@example.org) is the author of the book “Failures of American Methods of Lawmaking in Historical and Comparative Perspectives” and associate director of the Center for International and Comparative Law of the University of Baltimore School of Law.