The recent passing of Ruth Bader Ginsburg has reignited the national debate over the nomination process of Supreme Court justices. In response to the divisive confirmation of Justice Amy Coney Barrett, Congressman Ro Khanna is proposing a more direct approach to stabilizing the unpredictable and politically sensitive process of confirming justices. Alongside co-sponsors Don Breyer and Joe Kennedy, Khanna will soon introduce the Supreme Court Term Limits Act, a Congressional bill which will place 18-year term limits on all future Supreme Court justices; additionally, it will also create a system in which appointments to the Supreme Court are made once every two years, and thus twice per presidential term. The introduction of term limits would be the most effective way to mitigate the inherent partisan sway of the Supreme Court nomination process.
In today’s Supreme Court, the selection of justices is a highly partisan process. Presidents have no obligation to make impartial selections and are therefore incentivized to nominate judges with similar political views. As long as the president's party holds a Senate majority, these nominations are usually successful. The arbitrary nature of when nominations occur further delegitimizes the current selection process. While presidential power has been distributed relatively evenly between Democrats and Republicans in the past 44 years, Republican presidents have been able to appoint eleven more justices than their Democratic counterparts during this period. This demonstrates the court’s susceptibility to uneven partisan sway even if due to unintended, random causes such as the death of justices. Therefore, the lifetime appointment of Supreme Court justices contributes directly to uneven impact on the courts amongst both major parties, facilitating political conflict and making smooth nominations to the court increasingly rare.
According to the Act, in order to alleviate the impact of the partisan pressures ingrained in the design of the Supreme Court, each President must be awarded an equal amount of Supreme Court nominations. In today’s political climate, it would be naive to pursue a nomination process in which presidents routinely select mutually acceptable nominees. Our current system breeds partisanship, and any attempt to change this would require an overhaul of our court's design. Instead, a solution must focus on mitigating the effects of partisanship rather than eliminating partisanship as a whole. The Supreme Court Term Limits Act would do just this. Guaranteeing two nominations per presidential term would stabilize the nomination process and ensure that each elected president has an identical impact on the Supreme Court. After being elected by the general populace, each president would be granted two nominations per term. If the president elect is replacing a president of the opposite party, this system presents a change to rebalance the court likely influenced by the partisan sway of the predecessor. If there are two consecutive presidents of the same party, the will of the people will likely be reflected in the Supreme Court picks, indicating the success of the nomination process. This act provides a direct method for opposing parties to counter the partisanship of the other, ultimately resulting in a court influenced equally by each president.
Critics of this bill argue that it still provides no incentive for presidents to consider picks with bipartisan appeal. Instead, it modifies the system to ensure that partisan nominations can be countered with each new Presidency. This claim is objectively true, but misguided. Solutions meant to promote bipartisan picks amongst presidents would not only be ineffective, they would also cut even further into our historically validated Supreme Court nomination system. Some suggest that requiring a supermajority in the Senate would be a viable and effective alternative to The Supreme Court Term Limits Act. The super majority system would require at least three-fifths of the Senate to vote in favor of a nominee in order for a confirmation to occur. While it does seem that this would alleviate partisanship by forcing presidents to pick moderate justices, what proponents to this system do not consider is how difficult the confirmation process would then become. Stubborn senators catering to the desires of constituents would likely only vote for nominees which fell on their side of the aisle, making the nomination process difficult and potentially impossible unless the perfect candidate was presented.
Obama-era nominee Merrick Garland, is an example of a politically moderate candidate who failed to reach the court due to his lack of defined allegiance to either political party. The fact that Mich Mcconnell and fellow Republican senators refused to consider Garland, a true moderate, and instead relied on the upcoming presidential election as an opportunity to block any Obama nominee illustrates that moderate nominees are not what Senators nor constitutions really want. If such difficulty in confirming nominees arose each and every time the Senate was tasked with confirming a nominee, the nomination process would be even more chaotic and inefficient than it is now. Therefore, mitigating partisanship via the Supreme Court Term Limits Act would be far more effective in stabilizing the nomination process than the establishment of a supermajority requirement.
Although it would mark a rare reversal of historical precedent, the introduction of Supreme Court term limits would be the most effective way to rejuvenate our nation’s most important legal institution. If Congressman Ro Khanna’s bill is passed, the Supreme Court will move closer to freeing itself from the restrictive forces of partisanship.