There are few defenders of the Supreme Court Justice confirmation process. Every time it occurs, we go through a charade of hearings, where candidates are coy about their positions on most issues and talk about “neutrality” and being a mere “umpire.”
Who are they kidding? We all know that no judge is neutral or a mere umpire. We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets. We all know that ideology has some effect on judicial decisions. And we all know that judges don’t find the law but make it.
The fact that “we’re all legal realists now” makes the Supreme Court Justice confirmation process a political morass. It has also resulted in presidents picking candidates for the Court who are young and who lack an extensive paper trail on hot-button issues.
It used to be possible for the truly great jurists of their generation to be appointed to the Supreme Court, a capstone to their careers. But now it’s no longer possible because they are likely to be older and have taken positions on too many controversial issues. I think this is a shame.
How do we fix the process?
1. We need term limits for Supreme Court justices. Kagan could conceivably be on the bench for 40 years. That’s an absurd amount of time. Nobody should be in a position of power for that long. Term limits will prevent the trend toward picking younger people for the Court, and allow more seasoned jurists to serve on the Court as a capstone to their careers. I suggest a term limit of 10-15 years. That’s more than enough time.
2. The Constitution is too hard to amend. It’s virtually impossible. Of course, we don’t want to make it too easy to amend (i.e., we don’t want to emulate California). But now it is so difficult that trying to amend it is a fool’s errand. This makes the Supreme Court have too much power, for it really becomes the final word on many issues. Making the Constitution easier to amend will make Supreme Court decisions less powerful. If a supermajority doesn’t like a Court decision, the Constitution can be amended. But right now, the best chances of reversing a Court decision are to hope for a change in Court personnel.
With term limits and a Constitution easier to amend, the appointment of Supreme Court justices will lack the titanic stakes that the process currently has. Right now, there simply is way too much power in the hands of people who can sit on the Court for an entire generation and make decisions that are effectively impossible for the People to reverse.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.