Filling vacancies on the Supreme Court should not be left to chance. Here’s a fix

Calls for judicial reform have too often been code for seeking changes to the courts for partisan advantage. This is why reform is rarely accomplished. Why would Republicans help tilt the courts in favor of Democrats or the other way around?

As things stand, there’s a stalemate on judicial reform in the U.S. Senate because of that chamber’s filibuster rule requiring a two-thirds supermajority vote to end debate on a matter. Unless there is bipartisan support, nothing will happen. But if the filibuster is eliminated, whichever side is in control of Congress and the presidency may simply create new judicial seats to push the courts in their preferred direction. That would be a terrible outcome: expanding the court system for no legitimate reason, but merely to install political partisans. That sort of court-packing would degrade judicial independence.

Instead of focusing on partisan advantage, legislators should focus on resolving the randomness that plagues the current system. The biggest swings in court leanings occur when a Republican appointee is replaced by a Democratic appointee or vice versa. This occurs when a judge appointed by one party happens to die while the other party holds the White House. The balance of our legal system should not be based by such random chance.

Instead, after each presidential election, the president should get exactly one appointment to the Supreme Court per term, replacing a justice appointed by a previous president. With a four-year presidential term and nine justices, this means a 36-year term. The balance on the court over time would then be entirely based on the winner of presidential elections over the last 36 years. Likewise, lower federal court seats could have a staggered term so an equal fraction of seats is open each presidential election.

As to how to handle the death of justices, let each justice appoint and the Senate confirm his or her own understudy. That person would take over if the justice was no longer able to do perform the job’s duties. That person, upon elevation to a full justice, would then select an understudy and would serve out the remainder of the term. This would ensure the replacement would have a similar jurisprudence.

This means the jurisprudential — how the judge treats the law — makeup of the courts would not drastically change because of the death of a justice. Also, justices would not feel pressure to stay on the court past when they are fully able to perform their duties to ensure someone of similar views replaced them. Nor would justices be pressured to leave early when there is a current president who shares their views.

Senate confirmation would continue to ensure that the person selected to replace a justice is of a high enough caliber to be trusted with that responsibility. Delaying confirmation of qualified nominees would no longer serve an ideological purpose.

One challenge to this reform is that it would require a constitutional amendment. This wouldn’t change the effective term of a justice very much, considering the longest-serving justice was William O. Douglas at 36 years and 209 days. A constitutional amendment is hard to pass, but this kind of unbiased measure could attract the bipartisan support needed to garner a two-thirds’ vote of both houses and then ratification by three-fourths of the states.

There would be some important details to work out: For instance, perhaps a pension upon retirement might only be provided if the person were a judge or justice for at least 15 years. And should the understudy work with the justice every day as a kind of permanent clerk, or live a life outside the court?

There would also have to be a transition plan from the current system to this new system. Presumably the remaining term of each justice would be determined by seniority, with the most senior leaving after the next presidential election. Currently, that would be Justice Clarence Thomas.

This would remove the randomness from our legal system without giving advantage to any party. A 36-year cycle to completely change the Supreme Court would ensure that the law remains stable and changes slowly. The changes that do occur would be based on who is selected by the American people and not random chance.

Devin Watkins is an attorney at the libertarian 501(c)(3) nonprofit Competitive Enterprise Institute.

This story was originally published February 20, 2021 at 5:00 PM with the headline "Filling vacancies on the Supreme Court should not be left to chance. Here’s a fix."