Judicial Appointments in the Age of Trump - Are There Remedies for Polarization?

Marco Antonio Simonelli

University of Leiden

In September 1986, the Senate approved, with a unanimous vote, the nomination to the U.S. Supreme Court of Antonin Scalia, who is considered to have been one of the most influential conservative judges in the Court’s history – at that time already well-known for its originalist approach to constitutional interpretation. One year and a half later, the same senators confirmed Anthony Kennedy, the famous ‘swinging vote’ between the liberal and conservative justices on the Court. Although President Reagan was reportedly convinced he had appointed a “true conservative”, Kennedy ended up voting with the liberal side in many landmark cases, including the historical judgment in Obergefell v. Hodges. Notwithstanding their frequently opposing views, Kennedy and Scalia have something in common: they were the last two Supreme Court judges to be appointed without any contrary vote. After Kennedy’s retirement, for the first time in Supreme Court history, no judge currently sitting on the bench has been elected with a unanimous vote. Then, we can affirm that partisanship in Supreme Court’s appointments is a relatively new element.

Indeed, although the last confirmation votes mirror almost perfectly the Senate party division, it is only in 2016 that Supreme Court appointments have become such a sensitive issue in U.S. politics, with the refusal of a Republican-controlled Senate to even hold a confirmation hearing for Merrick Garland - the judge chosen by Obama to fill the seat left empty by the sudden death of Scalia. Now, the heated debate around the nomination of Brett Kavanaugh to replace Kennedy is making political observers call for urgent reform of the appointment process.

What is identified as the main flaw of the procedure is the excessive length of the judges’ tenure on the Court. This is the result of the combined effect of the constitutional (Art. III) guarantee of tenure ‘during good behaviour’ and the lack of either a mandatory retirement age, unlike for example their Canadian counterparts, and an age requirement at the time of the appointment, something that is provided for all other major offices in the U.S. constitutional system. The absence of both a minimum age for appointment to the post and of a compulsory retirement age represents a peculiarity of the U.S. Supreme Court, which has rendered the average length of the mandate of its judges the longest at a comparative level (for the incumbent judges it is over 27 years). It is worth noting that the increase in life expectancy is not the only responsible factor; in fact, all U.S. presidents after Nixon have tended to prefer young candidates: starting from 1900 of the 14 judges whose age was more than 60 at the time of the appointment, only 2 were nominated after 1970.

To that extent, it is quite surprising - especially considering the difficulties entailed by a constitutional revision - that the proposals put forward for reforming the process are mainly concerned with the abolition of life tenure rather than the introduction of age requirements for holding the post.

Amongst the many proposals to reform the process, the one which gathered the highest consensus -and which has also been presented to the Congress in the form of a bill - aims at introducing a fixed-term non renewable mandate, on the model of European constitutional jurisdictions.

More precisely, it provides that during each president’s term two nominations are to be made, one at the end of the first, and one at the beginning of the third year. After the appointment is made, if there are more than nine justices sitting on the bench, the one who has served for the longest period should leave the Supreme Court, retaining the status of Senior Justice and all the benefits connected to its role. The result would be that the mandate of each judge would be limited to 18 years.

Independently of whether such a system would be compatible with Art. III of the U.S. Constitution, this reform would fall far from achieving its scope, that is the de-politicization of the confirmation process, and thus of the Court.

Firstly, the proposal does not provide a solution for a situation in which the Senate simply refuses to hold a hearing for the nominee as it occurred in the case of Merrick Garland. Indeed, it is unlikely that the mere fact that the judge is nominated for only 18 years would push the Senate to confirm a person appointed by a President of the rival party.

Moreover, the proposal does not take into account that the rigid partisanship within the Robert’s Court - which holds an all-time record as regards the percentage of 5 to 4 decisions - is just a consequence of the polarization of U.S. politics. The Supreme Court cannot be insulated from the political environment in which it operates simply by limiting the permanence in office of its members.

Whilst arresting the polarization of U.S. politics may be a virtually unachievable task, it is nonetheless possible to minimize its effects on Supreme Court appointments. But, to achieve this goal, the reformers should look more into the dynamics of the procedure rather than the length of the judges’ mandate.

To this regard, the possibility of invoking a filibuster in the context of a Supreme Court appointment has had a very negative impact on the politicization of the confirmation process. The filibuster is a privilege enjoyed by every senator to speak for as long as they wish, in order to obstruct the debate and impede the reaching of a decision, provided that three-fifths of the assembly do not vote to interrupt him. The result is that once the filibuster is triggered, the majority required for the approval of a decision is of 60 senators. In 2013 the Democrats, with a controversial interpretation of Art. 22(3) of the Rules of the Senate, decided that a filibuster in presidential nominees - with the exception of Supreme Court judges - may be brought to a closure with a simple majority. Four years later, in the context of Neil Gorsuch’s appointment to the Supreme Court, the Republicans, faced with a filibuster, decided to abolish the exception and went on to nominate Gorsuch to the bench with a simple majority vote (52-48): the Democrats had activated the “nuclear option” which then turned against them.

As a result, in the current appointment process there is no counterbalance to the power of the ruling party to choose the judges of the Supreme Court, and this situation may lead to an alteration in the separation of powers which cannot be resolved by shortening the mandate of the judges on the Court. Therefore, the main goal of any reform proposal should be to provide a check to the power of the ruling party to select Supreme Court judges.

Given the constraints imposed by the U.S. Constitution, there are two main paths to attain this objective. The first one is the creation of a body charged with the task to indicate suitable candidates to the President, like the UK Judicial Appointments Commission. However, in light of the wide discretion accorded to the executive power in the American legal system, this alternative does not seem feasible.

The second one is the (re)introduction via statute, of the abolished right to filibuster. Indeed, the history of Supreme Court appointments showed that the filibuster worked well as an incentive for the President to select well qualified candidates rather an obstruction technique. Before 2017, it was only used once, in 1968, to prevent President Johnson to appoint Abe Fortas, who in the confirmation hearing revealed that he was regularly attending White House staff meeting, as Chief Justice.

Of course, it is very likely that, at least in the short period, this will lead to a prolonged political gridlock in the nominations and presumably this is the reason why such a proposal is disregarded by American scholars. But, as Justice Scalia once said, gridlocks are the essence of the separation of powers, and Americans should better learn to love them instead of talking of dysfunctional government.

Marco Antonio Simonelli completed his PhD in Comparative Constitutional law at the University of Siena and is currently completing his LLM in European Law at the University of Leiden.

Suggested Citation, Marco Antonio Simonelli, ‘Judicial Appointments in the age of Trump - Are there remedies for polarization?’ (10 October 2018) https://blog-iacl-aidc.org/blog/2018/10/9/judicial-appointments-in-the-age-of-trump-are-there-remedies-for-polarization