Supreme Court Justice Ruth Bader Ginsburg died yesterday, and like everything in today’s politics it kicked off a firestorm that made citizens feel angry while causing a further erosion of confidence in this country’s political system. Republicans are now promising a vote that will replace a liberal Justice with a conservative one, despite spending the bulk of 2016 making the argument that “voters should decide” while blocking Obama’s Supreme Court nomination during an election year. Even the most partisan Republican must understand how hypocritical this position is, but at the same time I suspect many liberals would grudgingly admit that had the situation been reversed, in this political climate Democrats likely would have done exactly the same thing. As a result, we’re moving quickly towards a showdown in which the current Republican position will lead to inevitable Democratic retaliation, further eroding any hope of competent governance of the country.
We probably over-glamorize the great statesmen of the past, but it seems to me that they might have sought a compromise in this situation. Thinking this problem through, I suspect that there may be an opportunity here for current statesmen to solve this crisis while improving our politics in the future.
For many years there have been proposals to implement term limits for Supreme Court Justices, so that in the future an 87 year old woman with cancer will no longer feel compelled keep her job lest she be replaced by someone of a different political persuasion, and that Justices won’t have to time their retirements based on the political leanings of the President and Senate. Most proposals for term limits suggest an 18 year term, with each Justice replaced every two years, but concerns about that proposal have suggested that it could lead to courts that frequently overturn past decisions, given that the swing vote could potentially change every two years, leading to chaos in the legal system.
The argument against injecting too much ideological change into the Court is a solid one – a President who served two terms would appoint nearly half of the Court, meaning (for example) that Obama would have theoretically replaced one Bush Sr nominee and three Clinton nominees, flipping the Court from a 5-4 conservative majority to a 5-4 liberal majority. Trump would then arrive and replace one Clinton nominee and one Bush Jr nominee, flipping the Court back to a 5-4 conservative majority. If Biden were to win he would be replacing two Bush Jr nominees and the Court would flip again.
As a compromise, I’d propose the following: set term limits for Justices, but first increase the size of the Court to eleven members, meaning term limits would be twenty-two years per Justice. Issues with Court ideology changing would still be a problem, but it would be less so with a smaller portion of the Court changing during any given administration, while a larger Court would also have a broader spectrum of ideological viewpoints, thus reducing the likelihood of decisions being regularly overturned.
The problem with increasing the Court’s size is that neither side wants to give the other two new seats on the Supreme Court, and any attempt to increase the size of the Court would be seen as unfair partisan politics. It’s here where the current impasse of RBG’s replacement would come into play. Senators could agree now that if Trump wins re-election then things stay as they are – he appoints a successor to RBG and the number of Justices stays at nine. But if he loses, rather than have a lame-duck Senate approve a lame-duck President’s nominee and Democrats then retaliate in ways that further erode current governing norms, make this compromise: Trump gets his successor to RBG, but the Court size is increased to eleven, meaning Biden gets to appoint two new Justices. Then, starting in 2025, Justices will start to be termed out based on seniority. Conservatives would maintain a 6-5 majority on the Court through Biden’s first term, we avoid the inevitable crisis over RBG being replaced in the midst of an election, and we solve this issue in the future by taking political calculus out of Supreme Court retirement decisions. Additional concessions might need to be made for conservatives, such as guaranteeing that the Filibuster would stay as-is or even giving Republicans the choice of who to nominate for one of the two new seats, but there’s a deal to be made here that would be a win-win for conservatives, liberals, and the country as a whole.
This solution wouldn’t be perfect – we’d probably need a Constitutional amendment, which is a HUGE issue, and we’d still need to figure out what to do when a Justice dies in office, retires early, or gets impeached. But I think those problems are solvable, and this process would defuse a very difficult political issue in a way that feels fair and leaves the system stronger for the future. Statesmen of the past found compromises for the most difficult issues of their day, and with another one brewing now, hopefully someone in our political establishment will be able to turn a situation that causes people to lose faith in our system of government into one that makes it stronger going forward.