No matter how the fight over Judge Brett Kavanaugh’s nomination to the Supreme Court ends, the lesson of it is already clear: The court is too important.
The Senate confirmation process has turned into a political street fight — not just for the Supreme Court, but for lower courts as well — because two ideologically polarized political parties correctly see the Senate engaged in the selection of a kind of superlegislature, with the power to facilitate or stymie the decisions of all other actors in U.S. government: the states, Congress, the president and the regulatory agencies.
The nation’s founders expected the federal judiciary, headed by the Supreme Court, to be the “least dangerous” branch, as Alexander Hamilton put it in Federalist No. 78. Hamilton’s was a sensible expectation, given the relatively modest role the authors of the Constitution envisioned for federal law outside such areas as admiralty and interstate business disputes.
The justices, Hamilton promised, would have “no influence over either the sword or the purse,” the essential elements of governmental power. They would “have neither FORCE nor WILL, but merely judgment.” And who’s afraid of a little judgment?
Today, though, the power of judicial review that Chief Justice John Marshall first assumed in Marbury vs. Madison in 1803 — but used sparingly thereafter — is regularly employed as a de facto alternative to the cumbersome constitutional-amendment process.
Thanks to the court, the Constitution now prescribes the warning about your right to an attorney that police must issue before questioning you. The Constitution forbids public-employee unions from collecting mandatory dues. Good luck finding either of those rules in the original document, except very, very implicitly.
As Benjamin Wittes put it in “Confirmation Wars,” an astute book he wrote in 2006 after what seemed, then, to be a breakdown in the process due to the Democratic filibuster of President George W. Bush’s circuit-court nominee Miguel Estrada: “Americans care because judges are deciding more and more issues closer to their lives.”
Obviously, the federal judiciary’s outsized role is not per se harmful. To cite just one example, Supreme Court intervention proved indispensable to catalyzing reform in areas where the other government actors had failed, especially the historic task of dismantling legal segregation.
Yet because many of those reforms — especially the legalization of abortion — took the form of court precedent, not constitutional or statutory text, and because justices can overturn precedent, progressives portray constitutional rights as perpetually at risk in the nomination process. Meanwhile, to those who oppose certain precedents, especially Roe vs. Wade, hope of getting a fifth justice springs eternal. Either way, it’s a formula for political conflict and legal instability.
With the grotesque spectacle now playing out on the Senate Judiciary Committee, the United States has reached a breaking point with respect to both the confirmation process and the role of the federal judiciary in our government.
The former is dysfunctional because the latter can no longer bear the weight of all the demands a divided society has placed upon it.
We can continue trying to staff the courts based on which party can manage, through fair means or foul, to get a temporary upper hand in the Senate. We can go from Miguel Estrada to Merrick Garland to Brett Kavanaugh to whatever payback Republicans feel justified in dishing out to the next Democratic nominee.
Down that road lies the complete politicization of the federal courts and, accordingly, the corruption of American government as a whole.
Or we can find institutional and cultural means to lower the stakes in judicial confirmations. If a life-tenured appointment to the Supreme Court is too important to entrust to someone of the opposite party, then perhaps life tenure on the federal courts should go. Originally conceived as a means of insulating judges from political pressure, under contemporary conditions (including increased life spans) it has morphed into the opposite.
An 18-year term for federal judges, at all levels, would help defuse confirmation battles by turning them into regular, predictable contests for a share of the judicial branch, rather than winner-take-all wars for “generations” of power.
Even in the unlikely event of a constitutional amendment to impose judicial term limits, the matter of the court’s wide-ranging purview would remain. Congress could help matters by writing more detailed and specific statutes, rather than salting legislation with ambiguities, a habit that may help get bills through to final passage but leaves too much for regulators and judges to interpret.
The ultimate solution lies in the restoration of political consensus, the lack of which is the root cause of both Congress’ inability to legislate and the public’s inability to modernize the Constitution through amendment.
In other words, the confirmation process will remain broken as long as America is.
Charles Lane is a Washington Post editorial writer.