The Pathology of Picking Supreme Court Justices
The Supreme Court appointment process has become almost pathological . . . ironically, for rational reasons. The incentive is for presidents to select people who are: (1) young, so they have a reign on the Court that rivals Fidel Castro’s in length; and (2) obscure, so they have rarely taken any positions on any major issues. [Sadly, the future prospects for Supreme Court appointments for bloggers are not looking good.]
The nomination of Harriet Miers has left many people guessing. We know very little about her. Mark Graber writes on Balkinization: “What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us.” Jack Balkin calls her a “stealth candidate.” Orin Kerr is “quite puzzled.”
We should be selecting Supreme Court justices from the most accomplished and distinguished of legal figures. Instead, being a judge for a long time almost disqualifies a person for the Supreme Court.
The Senate confirmation hearings have turned into vapid ritual, where Senators posture and bluster, and the appointee does a well-rehearsed dance to reveal as little as possible. No appointee is going to go before the Senate and say: “Well, yes, Senators, I intend to legislate from the bench. I’ll be activist. I won’t follow the Constitution. Instead, I’ll decide cases based on what I’ve had for breakfast that day. I’ll be biased and I’ll try to twist the law to conform to my personal whims.”
I hope that in the debates that follow about Harriet Miers, the focus will also include the systematic problems with the appointments process more generally.
What can be done?
One thing is a term limit or its functional equivalent. Personally, I think 16 years would be a good limit. That’s four presidential terms. A term limit will at least reduce the incentive to avoid appointing older individuals, who are likely to be more distinguished than younger appointees.
Another potential improvement would be to increase the size of the Court. Each Supreme Court justice would have less of an impact, and a more frequent and regular appointments process would hopefully lower the political stakes of each appointment.
Of course, there is no way to completely fix the problem, but something is terribly wrong with the process as it stands now.