Can you truly fix or reform something in government if you let those who created the problem attempt to solve it? That’s the question ringing in my head after hearing both President Joe Biden and Senate Majority Leader Chuck Schumer, D-N.Y., lay out plans they claim would reform the Supreme Court and the judiciary as a whole. The big basic idea both are advocating involves term limits for judges and Supreme Court justices and instituting an enforceable code of conduct.
Both ideas are what I call “nice-to-haves,” but they wouldn’t deal with the problem that actually exists in the judiciary: too many partisans — i.e., too many judges wearing red and blue robes — and not enough simply wearing black robes.
Another motivation for these public reform efforts also involves partisanship, as Democrats are livid over Justice Clarence Thomas’ excesses in accepting gifts from Republican donors who have business before the court. There’s no doubt this anger from the left over Thomas and, to a lesser extent, Justice Samuel Alito, who has demonstrated a belief in legislating from the bench, has more to do with the court’s rulings and sharp turn to the right than justices’ actual outside-the-court behavior.
That having been said, just because the criticism from the left may be motivated by frustrated partisans, it doesn’t make the behavior of Alito or Thomas defensible. Both justices have grown entitled in their jobs, and, apparently, so have their spouses. Their lack of self-awareness about perception of their personal actions (be it from them or their spouses) is enough to disqualify them from many basic positions in government, let alone one of the most important and powerful positions that exist.
And that entitlement development alone is a good argument for term limits of some sort for the judiciary.
But as much as ethical lapses are a problem, this isn’t why the judiciary appears broken to so many Americans. Remember, today’s judges are a product of our generation-long polarized wars of the Senate. The issue isn’t how judges behave in office; the issue appears to be the confirmation process itself.
If you are angry about the judiciary, remember whom to blame: the Senate leaders who hijacked the process and gave us the most partisan-driven judiciary we’ve had in a few generations. There are few partisan good guys on this issue.
To figure out how we de-politicize the judiciary, we have to agree on what an ideal judge should be.
If the ideal judge is akin to an umpire or a referee in sports — i.e., a neutral arbiter who decides whether someone is following the rules — then our current system is, indeed, broken.
If you believe the ideal judge is an ideologue who also performs the duty of arbiter, then you see the judiciary almost as an extension of the electoral process. Plenty of ideological advocates for the court believe that it should reflect some on the left, some on the right and some in the middle but that the ratio should be subject to which side of the political aisle is in charge at any given moment in history. This is basically the current accepted version of how the courts should operate in the 21st century.
Somewhere along the line, Senate leaders on both sides of the aisle decided that they should subject the judiciary to the same partisan warfare that dominates every other political debate in Washington. And that rank partisanship may explain why the public’s views of the Supreme Court have soured so much over the last decade.
While senators love to blame the other party for politicizing the judiciary, the facts show that both parties have dirty hands. In the name of “stopping” a liberal or conservative judge from getting a hearing or a seat on the court, leaders have changed the rules of the confirmation process to better reflect the raw political power both parties can accumulate in any given moment. Instead of forcing just about every judge to get “bipartisan” levels of support to get seats on the federal bench — that’s what the 60-vote filibuster threshold essentially gave us — both parties embraced the idea of a simple majority to decide whether someone should get a lifetime appointment in the judiciary.
It is this decision alone that has helped the judiciary become so distrusted over the last few years. We are in our second decade of having a judiciary built by judges who could get confirmed on a 50-vote partisan basis, and to say this experiment isn’t going well is an understatement.
Now, let’s go back to our founding and see what the framers expected from the judiciary. Alexander Hamilton argued for the judiciary branch in Federalist 78, primarily using the piece to defend the idea of a separate branch of government that was equal to both the keeper of the sword (the executive branch) and the keeper of the purse (the legislative branch). He also used this article to defend the idea of lifetime appointments as a potential safeguard to keep the judiciary truly independent from the excesses of either of the other branches.
But there’s one paragraph I want to highlight in particular, in which Hamilton argues not only against too much partisanship on the courts but also against the idea of electing judges or giving them arbitrary terms. In short, it’s in this section where I think Hamilton makes it clear that he expects the judiciary, on the whole, to be apolitical and above partisanship of any kind. (I’ve bolded some key phrases.)
“[The] inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”
I think it’s fair to say Hamilton saw the judiciary as akin to an umpire or a referee who simply decides whether a law is constitutional, pure and simple. You’ll also notice (when you read the entire article) that he doesn’t assume the interpretation of the Constitution is stagnant to a particular moment in time. It’s clear he expects the Constitution to be the final word, but, ultimately, he knew the interpretation of what is and isn’t constitutional would be up to the interpretations of legal scholars. (Of course, he and his ilk also assumed the people would have amended the Constitution a lot more often than we have over our nearly 250 years in existence. But I digress.)
So if we can agree that Hamilton was advocating as neutral a body as a republic could create for the judiciary branch, then what’s the best way to achieve that goal?
Certainly, lowering the number of votes in the Senate a nominee needs for the federal bench isn’t the best way to do this. This, for me, was the fatal flaw of the tit-for-tat between Senate leaders Harry Reid and Mitch McConnell over judges during the George W. Bush, Barack Obama and Donald Trump presidencies. Lowering the threshold for confirmation from 60 votes to 50 votes certainly helped the Senate fill the vacant seats with their preferred partisan outcomes, but they created a polarized legal system that now lets people judge-shop to get some cases into the system that eventually make their way to the Supreme Court.
In short: The judiciary is a mess.
Reforming it, frankly, wouldn’t be hard. I have a very simple solution: All judicial nominees would need three-fourths supermajorities (75 Senate votes) to earn lifetime appointments (or near-lifetime appointments if we decide to institute a term limit of somewhere between 18 and 24 years).
Now, you may wonder, “75 votes?!?! Are you out of your mind? Look at what happened to the Senate when the threshold was 60 votes — it basically ground Senate business to a halt.”
Yes, it did. But here’s what the 75-vote threshold would trigger: a much different type of nominee from the executive branch.
If you know going in that you need upward of half of the other party’s senators to get a nominee confirmed, then you would have incentives to find as neutral a nominee as possible. Some presidents would attempt to find moderates from their side of the aisle; other presidents might decide to seek out people who have never indicated political leans one way or the other (perhaps military judges?) but simply have demonstrated excellent knowledge of the American legal system. Still others might decide to find moderates from the other party, especially if partisan control of the Senate and the White House differ.
The point is that you’d get a much different set of nominees, who would be expected to truly call balls and strikes because the process would almost guarantee that outcome. And that’s the point of this piece: Remember who created this current judiciary, the U.S. Senate of the last 20 years. The idea that the Senate should sit in judgment of this judiciary without admitting its role in creating the conditions for this terrible era we are in is just another reminder of why the public has grown so cynical about politics in general and politicians specifically.
What’s truly distressing is how few sitting senators think raising the threshold for confirmation is a good idea. They are so tied to the partisan outcome they expect from the judiciary that their own party activists have come to expect them to behave as partisan warriors when it comes to judges: fight everyone from the other side, and fight for anyone from your side.
Very few senators appear to advocate for what Hamilton argued, “that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” That can be done only by folks who don’t have partisan skin in the game. And the more partisan a process we have for judges, the less likely you would be to have a purely independent judiciary.
Again, as Hamilton argued so eloquently: “For I agree, that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’”
Unfortunately, too many folks on both sides of the aisle are pushing for a judiciary that’s more attached to the whims of the two other branches. Here’s hoping more senators re-read Federalist 78 and realize the last thing Hamilton and the founders were advocating for was a judiciary branch that looks like the one we currently have.
Overthinking media strategy
Among the sillier news cycles every campaign is the “debate over debates” and the debate over media coverage and access. It’s a conversation that the media and politicians care a lot more about than the public at large. Of course, these internal debates do matter, since they affect what the rest of the country’s voters eventually see of the presidential candidates, either on the debate stage or through the media filter.
Let me start with the first big mistake of the Harris campaign since she took over as the Democratic nominee. Her campaign has now raised the stakes for her first one or two sitdown interviews. More words and phrases will get scrutinized simply because the campaign and the candidate are behaving as if doing these interviews is about as interesting to them as a visit to the dentist’s office.*
I know many Democrats have an allergy to all things Trump, but the one thing I thought more candidates would learn from his initial campaign in 2016 is that he viewed all media as good for him, whether he thought the interviewer was a friendly, a neutral or an opponent. Trump was willing to go everywhere. Of course, Trump circa 2024 is a tad more risk-averse, and he seems more nervous than ever to be interviewed by anyone who isn’t a proven sycophant. But 2016, Trump was fearless when it came to media sitdowns. And he did so many of them that while what he said would make news occasionally, the news he did make rarely lasted. When he said something outrageous or controversial during one sitdown, he’d do something entirely newsy (and just as notable) in another sitdown that would essentially dilute the impact of all of his interviews.
The point is that the Harris folks are going about this all wrong so far. They shouldn’t be going through the silly exercise of looking for a Goldilocks interviewer (who, according to Politico, is a journalist who is seen as nonpartisan but also non-adversarial). What they ought to do is set aside one day a week for media interviews and saturate the landscape. As we all know, there’s no one place to go anymore to get near 100% media saturation. The Super Bowl is about as close as one can get, and last I checked, the next Super Bowl is scheduled for after the inauguration, let alone the November election.
If she did five or six round-robins one day a week (or even just the first time!) with a sprinkling of all types of media outlets — local, national, podcasts, cable, digital, etc. — no one interview would be likely to overshadow any one news cycle, and she’d most likely have a chance to reach more diverse audiences on a regular schedule.
(Now, one other odd idea if the Harris campaign insists on just one or two sitdowns: Make the first with a perceived adversary — say, someone at Fox News. It’s a win-win for the campaign. If the interview goes well, she went into the lion’s den and survived! If the interview doesn’t go well, she can blame the partisan intent of the network’s editorial mandate.)
By the way, these interviews would also help her with debate prep. Trump should be using the same strategy. Whether we like it or not, we live in a fragmented media environment, and that calls for fragmenting how a candidate reaches out. It should be an all-of-the-above strategy.
The Harris campaign is acting as if it has something to fear. I think the same mindset holds for the debate over debates. If you worry too much about a single confrontation, you’ve served only to raise the stakes for your own performance in said debate. But if you’re willing to do three or four or 10 debates, you’ve most likely diluted the impact of any one debate over another.
Part of the job of being president is thinking on your feet when time is of the essence. Sure, a media interview isn’t the presidency, but as the public tries to figure out the mettle of these presidential candidates, how they conduct themselves in both friendly and unfriendly media environments certainly helps.
* By the way, I do like my dentist. Also, I think my dentist is a column reader, so I don’t want to make him mad! He has more sharp objects at his disposal!