Feb 27, 2016 5 min read

Senate Majority Leader Mitch McConnell’s declaration, barely two hours after the death of Supreme Court Justice Antonin Scalia, that the Senate would not consider any candidate nominated by President Obama demonstrates the partisan dysfunction of the existing political system. It is ironic that in seeking to retain their 5-to-4 partisan advantage in the Supreme Court, the Republicans are refusing to abide by the constitutional provisions that were so important to the man whose legacy they are professing to preserve.

While Supreme Court cases have sometimes been controversial, during the last 50 years, the court, reflecting the politics of our time, has become more partisan than ever. The Brown v. Board of Education ruling (1954) was very controversial, but not on partisan grounds; the court unanimously overturned segregation, but a unified court pushed a country that was anything but unified on the topic further than many people wanted it to go. While few would argue today that the court’s decision was wrong, it did usher in a period when many conservatives felt that an “activist” judiciary was usurping the power of the legislative branch. During the 1960s, the Warren court’s rulings limited the powers of the police, overturned bans on interracial marriage, supported voting rights, the rights of the government to regulate business for environmental, worker and consumer safety issues, and, finally, in 1973, used the concept of an implied “right to privacy” to establish a woman’s right to have an abortion.

During the 1980s, the Republicans used their lock on the presidency to reverse the liberal direction of the court. Since then, the majority of Republican appointees have done that, imposing restrictions on abortion, limiting the activities of unions and the government’s power to regulate industry, among other things.

Two decisions in particular exacerbated the notion that, instead of being above politics, the Supreme Court has become the ultimate partisan battleground. In Bush v. Gore in 2000, the Supreme Court’s conservative majority ignored its philosophical tenets of states’ rights and judicial deference to the legislature to stop Florida from completing a recount of its vote in that year’s presidential race, which allowed George W. Bush to become president. In 2010, the Citizens United decision equated money with speech and gave unions and corporations the same free-speech rights as citizens. This decision unleashed an unprecedented amount of political spending, and encouraged presidential aspirants to court billionaire donors who have since become major political players.

In 1987, Senate Democrats tried to slow the rightward shift in the court by refusing to approve President Ronald Reagan’s nominee, Robert Bork, because of his outspokenly conservative views. Their opposition changed the strategy for future nominees. More recent appointees have been younger, so that the appointing president’s legacy will have a longer duration – Scalia was on the court for almost 30 years – and generally have a limited judicial record or published work, to limit potential grounds of opposition.

The growing partisan significance has also encouraged members of the court to retire only when a president who shares their political views is in office, to assure the continuity of their views on the court. Last year, some liberals suggested Justice Ruth Bader Ginsburg should retire to avoid the possibility of her retirement under a possible Republican presidential successor to Obama. The current system provides an incentive for justices to artificially delay their retirements, which could lead to justices remaining on the court in spite of a decline in their abilities.

So, while the Founding Fathers may have designed the Supreme Court to be above the fray, it has become anything but. And the suddenness of Scalia’s death, and the impact that may have on the decisions of the court, is a testament to the inherent flaws in the system. While the Republicans’ declaration that they would not approve anyone nominated by Obama is unprecedented, given the political ramifications of that appointment, it is not surprising.

To remove the arbitrary nature of Supreme Court openings, and to allow presidents and the Senate to appoint more experienced justices, we should restructure the appointment process. Justices should be appointed for 18-year terms, instead of for life. Such a lengthy term would prevent any justice from feeling pressure to rule in a particular way in order to retain his or her position – the purpose of a lifetime appointment – but it would also discourage the appointment of a young, essentially unknown quantity in order to ensure a long tenure. It would also mean that elected presidents would have a power of appointment commensurate with their electoral power. A justice would retire every 2 years, so every president would appoint two justices per term. Were a justice to die or retire without completing a term, the president in office would appoint a replacement, but the replacement would only fill the remainder of the term, though the replacement could be reappointed when that term was up.

Although it is important to insulate the judiciary from politics, a single, 18-year term would do that, and regular appointments would be a better reflection of the people’s political will than the current system.

Kent James is an East Washington resident.