A vacant seat should not be a battleground
Until the passing of U.S. Supreme Court Justice Ruth Bader Ginsburg on Sept. 18th, American political junkies had little to quarrel about: responses to the global pandemic, criminal justice reform, rioting, climate change. How could one survive on this insufficient diet of political fodder?
Now a new political debate rages about who will replace Justice Ginsburg in the Supreme Court of the United States. This debate, however, highlights the failure of legislators to perform the duties for which the citizens of the United States elected them.
If President Donald Trump wishes to appoint a justice before the presidential election in November and is successful, the court will have a 6-3 Republican majority.
The president is well within his rights to take this step, and with the current composition of the legislatures, he would probably be successful in filling the opening. This move would cause much animosity after the appointment of Merrick Garland was blocked by Republicans as a replacement for Justice Antonin Scalia in 2016 on the grounds that it was an election year. The partisan nature of supreme court nominations has never been clearer.
The replacement of supreme court justices has even become a campaign issue. Millions of Americans cite supreme court justice nominations as the top issue that is driving them to the polls.
But the replacement of one appointed official, in any self-respecting democracy, should not be hailed as a decision that will decide the future of the republic (a cry made by people on both sides of the political aisle).
The United States’ decision to break away from England in the 1700s was motivated by a belief that legislators, elected by the people, should be the primary and supreme law-making body in the nation. In Canada, we refer to this as parliamentary supremacy.
So how can the United States reel back the partisanship of the SCOTUS and renew faith in the legislature? For this, I offer two solutions.
First, I come to the issue of term limits. America’s Founding Fathers thought a lifetime term would mitigate partisanship in the court and allow for greater independence of the judiciary. But the idea that a SCOTUS Judge faces no term limit gives the President the ability to stack the court and affect its composition for many years after he has left office.
There is no clearer example of this than that of Franklin D. Roosevelt, who was able to appoint eight Supreme Court Justices during his tenure, some of whom would serve until the 1970s.
The way to remedy this problem is to enforce term limits on judges. An 18-year term limit enforced in a way that necessitates one judge retires every two years would encourage less partisanship.
Presidents would know that they would get two nominations per term, but would also know that their predecessors would wield the same ability. Appointing judges with strong political ideologies would only be met with unfavourable appointments when that president’s opponent took office. To counter this, the president would choose a judge agreeable to both parties, with less of an ideological bias.
Second, American legislatures should leave behind the cowardice that dissuades them from enacting new legislation. In the majority of cases, the SCOTUS decides; the decision is not dependent on constitutional interpretation.
The decision is instead based on the court’s interpretation of law passed by the U.S. legislative houses. This means that in those cases where the legislature feels the supreme court was wrong, they can write new legislation that overrules the court. This, of course, being the concept of elected legislative branches of government reigning supreme over those with only appointed officials.
The legislatures are often nervous to legislate because every new law could become a political battleground on which they lose the next election, but changing this attitude is key to re-establishing a respectable court and a healthy democracy.
The partisanship of judicial nominations has never been bleaker, but these solutions would limit the political nature of the court and re-establish the legislatures to their proper supremacy.