America's severe partisan polarization is wreaking havoc on each of the branches of the federal government. But it's the judiciary that's so far suffered the gravest consequences.
In the year since the death of Antonin Scalia, the Supreme Court has been hobbled, forced to muddle through its tasks with just eight justices. The proximate cause of the problem was, of course, the refusal of the Republican leadership in the Senate even to hold hearings, much less permit an up-or-down vote, on Merrick Garland, President Obama's choice to succeed the conservative justice. That, in turn, has inspired Senate Democrats to refuse to meet with Neil Gorsuch, President Trump's nominee. If the Democrats attempt a filibuster, the Republicans will be able to use their majority to force a vote by changing the rules of the Senate. That would mark yet another new low in the politicization of the high court.
The rancor embroiling the court is an expression of broad-based polarization in American political culture. But when it comes to the court itself, this hostility ultimately traces back to 1987, when Senate Democrats rejected the nomination of Robert Bork purely on ideological grounds. Tensions surrounding the confirmation process for federal judgeships and the high court have slowly increased ever since then, with the Garland blockade setting a new standard for dyspeptic dysfunction.
Republican Mitch McConnell, the Senate majority leader, claimed there was precedent to block a high court nominee in an election year, but it wasn't true. Instead, what we saw in the unparalleled intransigence of the Republicans was an expression of ideological desperation: If Obama were permitted to flip Scalia's seat to the left, it would be a net ideological gain for Democrats — and the stakes were simply too enormous to permit that, especially with a presidential election looming.
Whether McConnell would have permitted an Obama nominee to receive a floor vote if Scalia had died three months earlier — a full year before the presidential election — is something we will never know. The same goes for the possibility that McConnell or other Senate Republicans would have blocked any and all nominees named by a President Hillary Clinton, as some (in the weeks leading up to Election Day) suggested they would do following the inauguration of the Democrat.
The stakes for both Republicans and Democrats are somewhat lower now. President Trump has nominated someone quite ideologically close to Scalia, making the Gorsuch confirmation a battle over whether the high court will be permitted to keep its former balance of liberals and conservatives. Yet Democrats remain understandably irked by the way Garland was treated and eager to inflict pain on Trump's nominee in retribution.
And then there's the question of what will happen when and if Trump gets the opportunity to nominate someone to succeed a liberal justice. Without the filibuster, there's little the Democrats would be able to do — as long as they continue to find themselves in the minority in the Senate. And that points to the possibility that we may have entered an era in which presidents are able to get Supreme Court nominees confirmed only when their party holds the upper house of Congress.
Thankfully, there is a possible way out of the ever-worsening deadlock that confronts us — an institutional fix that was suggested in a recent book by legal journalist Lincoln Caplan, American Justice 2016: The Political Supreme Court (which I had a hand in publishing).
Caplan proposes that the Constitution be amended so that Supreme Court justices are appointed for 18-year terms instead of life terms, with appointments staggered every two years. This would guarantee that each one-term president would get to nominate two justices, and every two-term president would get to nominate four, with the justices rotating off the court in a regular pattern every two years (except in cases of untimely death or debilitating illness). Caplan also suggests that the chief justice could automatically be the most senior justice on the court or the median justice — any mechanism that would avoid the arbitrariness of one nomination (immediately after the retirement or death of a chief justice) carrying more weight than others.
As Caplan notes, this reform of the court would likely "reduce the strife in the confirmation process, by making appointment and confirmation an every-other-year practice." And unlike most proposals for constitutional amendments, this one would benefit both sides of our polarized ideological divide. It's hard to see why either party would stand against it. It's fair.
Everyone has an incentive to de-escalate the high court wars. What better way to accomplish that worthwhile goal than to introduce a novel bit of institutional machinery into our 18th-century anachronism — the clanking and grinding Rube Goldberg contraption we call the Constitution?