Many recent U.S. Supreme Court decisions have been ideologically driven, leading several Democratic presidential candidates and former Attorney General Eric Holder to propose increasing the size of the court to promote balance.
But packing the court with more justices won’t solve problems caused by jurists with political axes to grind. If a Democratic administration and Congress increase the court’s size and put more “liberals” on the bench, then “conservatives” might repeat the process when they take power again. We could then witness a court ballooning in size through tit-for-tat expansions and ideological appointments.
The real solution is to amend our constitution’s mechanism for Supreme Court appointments and switch to a system less prone to partisanship. We can look for ideas in other countries that wrote their constitutions later than our 1787 version, and intentionally structured their court systems in response to what they saw as America’s mistakes. They learned from us, and we now have something to learn from them.
For example, Germany’s post-World War II constitution was consciously based on an American model — with some upgrades. It provides for a constitutional court with members chosen by two-thirds of both houses of parliament, voting by secret ballot. Some of the court must be experienced professional judges, and others are legally trained academics, civil servants or lawyers. All are expected to serve a single 12-year term and then retire from public life. The two-thirds vote required for appointment means that all members of the court are consensus picks and cannot be too “liberal” or too “conservative.” The secret ballot shields members of parliament from political pressure.
The United Kingdom’s Constitutional Reform Act of 2005 established a new 12-member supreme court and installed another appointment method we could learn from. When a vacancy occurs, a special selection commission is formed from members of the three independent judicial appointments boards of England/Wales, Scotland and Ireland, each of which has a separate legal system. The special commission forwards a single nominee to the lord chancellor, who either accepts or rejects the nomination. If the chancellor approves the selection (as is typically the case), the name is forwarded to the prime minister and then the queen for appointment.
Austria in 1920 became the first country to separate its supreme court from a new court to hear only constitutional questions. That country’s president appoints the constitutional court, but eight of its members are nominated by the cabinet, three members by the equivalent of a House of Representatives, and three from a senate that represents Austria’s states. The court also has substitute members. In order to promote professionalism, justices nominated by the cabinet must be career judges, civil servants or law professors.
Korea’s constitutional court, copied from Austria’s, has nine jurists, three of whom are selected by the country’s president. Three more are also appointed by the president but from a list of candidates selected by the National Assembly. The final three are picked by the president from a list of nominations by the chief justice of the supreme court (which is different from Korea’s constitutional court).
These are just a few examples of methods used around the world to produce nonpartisan, professional appointments to high courts. Here in America, we could pick and choose among those successful models. For example, we could require the president to appoint justices (and perhaps all federal judges) from a list of nominees forwarded by a nonpartisan commission. The president’s appointments could also require a two-thirds vote of the Senate (or, like Germany, a two-thirds secret ballot of both houses). Another approach would be to have three Supreme Court positions appointed by the President, three by the House, and three by the Senate. But all nominees would require supermajority approval by both houses of Congress.
A nonpartisan nominating commission and/or a supermajority requirement would mean that only nonpolitical, middle-of-the-road jurists could survive appointment and confirmation to our nation’s Supreme Court. But that’s the point.
Changes like these would require a constitutional amendment — not an easy task. Nevertheless, people on both sides of the political spectrum claim to support a nonpoliticized Supreme Court, and back-and-forth court packing is in no one’s interest. The American public, and even elected leaders, just might be willing to get behind a federal judicial appointment process based on successful approaches used around the globe.