At present, the U.S. Supreme Court has eight justices and one vacancy. Although it is an election year, Republicans are determined the fill that vacancy, despite refusing to fill a similar vacancy back in 2016, during which they argued that vacancies should not be filled during an election year.
Democrats are fuming, and there is now talk among the disgruntled that perhaps the Supreme Court should be expanded by a few justices in order to balance things out. At the Sept. 29 presidential debate, Democratic candidate Joe Biden refused to answer if he would support “packing” the Court if elected, and on Oct. 7, Kamala Harris was similarly evasive during the vice-presidential debate. Such silence speaks volumes.
If Democrats win the House, Senate and the presidency, they may feel empowered to “pack” the court, especially if Republicans ram through Donald Trump’s latest nominee days before the election.
Such “packing” would be historic. Then again, when Republicans went “nuclear” in 2017 by getting rid of the filibuster for Supreme Court nominees, it was also pretty historic. Of course, Republicans will claim they only went “nuclear” because Democrats went “nuclear” back in 2013 when they got rid of the filibuster for lower court nominees. Democrats at the time claimed they only went “nuclear” because Republicans were obstructing judicial appointments during the presidency of Barack Obama. Republicans would probably reply that it was actually Democrats who first weaponized the process by “Borking” one of Ronald Reagan’s nominees back in 1987.
Regardless of who started this judicial Cold War, both parties have proven equally willing to go “nuclear” in order to give their side a judicial advantage. The thing about nuclear wars is that there is no real winner. The same goes for nuking judicial norms. If one of our three branches explodes, we as a nation are going to implode because tripods can’t stand on two legs.
What’s the solution?
During the actual Cold War, the U.S. and Soviet Union both raced to have a nuclear advantage over one another. There was a very real risk that the world would be blown to kingdom come, whether intentionally or through an accident. Eventually, Reagan initiated talks with the Soviets, which ultimately resulted in the removal of about 80% of all strategic nuclear weapons then in existence. If Reagan and the Soviets where able to find common ground, certainly Democrats and Republicans should be able to reach an agreement regarding judicial appointments.
The U.S. and Soviet Union were bound by an international treaty. The Democrats and Republicans should be bound by a constitutional amendment.
First, this amendment should probably incorporate assistance appointments. The Show-Me State pioneered this approached in 1940 by requiring that the governor appoint state judges from a predetermined list created by a nonpartisan commission that reviews candidates based upon merit. Today, 34 states and the District of Columbia use some form of what is now referred to as the “Missouri Plan.”
Second, this amendment should probably incorporate retention elections. This is when voters are asked whether an incumbent judge should remain in office. Missouri also uses a variation of this for certain courts, as do 19 other states.
There would probably be a whole lot less hoopla every time there was a Supreme Court vacancy if presidents were prevented from nominating controversial candidates and if citizens didn’t have to worry about being stuck with that individual for the next several decades.
Supreme Court Justice Louis Brandeis once called states “laboratories of democracy” because policy innovations could be tried out and then — if successful — spread across the nation.
We live in polarizing times, and despite how it’s spun, both Democrats and Republicans are guilty of bringing our democracy to the precipice of disaster. Maybe the warring parties can learn a thing or two from how Missouri approaches judicial appointments.
Joshua Holzer is an assistant professor of political science at Westminster College in Fulton and a resident of Columbia.