Brett Kavanaugh's confirmation reveals a Supreme Court facing a legitimacy crisis, making it the perfect time to make it more democratic and accountable.
The bitter confirmation of Brett Kavanaugh has left the Supreme Court facing a legitimacy crisis. This was exposed by the Republicans on the Senate Judiciary committee, who showed little interest in seriously investigating Christine Blasey Ford's allegations of sexual assault. Democrats were not completely blameless either, especially Sen. Dianne Feinstein, who failed to come forward earlier with Ford's allegation. This flawed confirmation process was ultimately revealed by a sham of an FBI investigation that lasted only five days and never interviewed the alleged victim or perpetrator. Worst of all, Dr. Ford's bravery and sacrifice in coming forward with her story was in vain. What's been revealed is that the Supreme Court is an institution in the midst of a crisis of accountability, and one in need of major reform.
Urging radical changes to the Supreme Court must be on the progressive agenda in 2020 and beyond. If Democratic voters and progressive activists are angry about Kavanaugh's confirmation process, as they should be, maintaining the status quo is unacceptable. It is paramount that both common sense and radical reforms be pushed to ensure that the court is more responsive and accountable.
1. Code of Ethics
In addition to facing serious allegations of sexual misconduct, Brett Kavanaugh faces a series of other ethical questions. These range from issues with his finances, such as the strange disappearance of his debts and spending $200,000 on baseball tickets, to issues over potential bias. But, interestingly, there is no ethical rulebook for the behavior of Supreme Court justices.
Kavanaugh is not the first justice to face ethical problems, either. There have been questions of the morality of the justices appearing at partisan events, financial disclosures, and conflicts of interest. But it's now time for the Supreme Court to be subjected to the same ethical standards that Congress is held to. Not too long ago, the House introduced a bill called the "Supreme Court Ethics Act." If Democrats take back the House in November, it's important they be pressured to reintroduce and pass that legislation.
2. Term Limits
If you think about it, the Supreme Court has an unfair share of power. How else would you describe a group of nine unelected bureaucrats appointed for life to shape the laws for 300 million people? It's hard to believe that we still accept the idea that certain government officials should be given lifetime appointments. We no longer accept it for presidents, nor should we accept it for senators and representatives and, especially, Supreme Court justices.
The United States would be wise to join the rest of the world and introduce term limits for its highest court. Other countries have introduced 18-year term limits. An article in Vox argued that term limits would decrease the "partisan warfare" of Supreme Court nominations. Staggered 18-year terms would allow for a new vacancy every two years. Every president would get to nominate two each term. Every 20 years the court would be entirely remade. Term limits could also greatly decrease the likelihood of sudden deaths or retirements, and could introduce younger blood to a court whose average age is the highest it's ever been.
3. Direct Election of Justices
One of the more radical suggestions being widely discussed is the direct election of justices. Up until the ratification of the Seventeenth Amendment in 1913, most Americans never considered directly electing senators. This was a major victory of the progressive movement in the early 20th century in making the Senate a more democratic institution. Today, judges at the local level are routinely elected in most places.
The same should be done with the Supreme Court. While the court was originally intended to be above politics, it is anything but that today. The Supreme Court has always been a political body, though it's often been thought of as the least partisan of the three branches. But the moment Brett Kavanaugh spoke about "revenge on behalf of the Clintons" the idea of a nonpartisan court was instantly crushed. If this is the case, it would make sense to subject it to the same standard of democratic accountability as the other branches of the federal government by proposing a national election to fill vacancies.
There are obviously major hurdles to overcome before these changes can become reality. In conservative judicial circles, strict constitutional textualism — the concept that the Constitution should be interpreted as the framers intended — holds considerable influence. Look no further than the Federalist Society, which played a big role in the confirmations of Antonin Scalia, John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. It's crucial that progressives push back against this idea of the Constitution. The Constitution, while being a useful blueprint, should not be treated as a sacred document, but as a mutable, living representation of America's moral and ethical framework.
There's also the question of political will. These changes to the Supreme Court, especially term limits and the direct election of justices, will likely require an amendment to the Constitution. In today's political environment, passing such an amendment would be a Herculean effort. Constitutional amendments don't happen overnight. They often require decades of activism and agitation to become reality. Prohibition and women's suffrage both involved major social movements that triggered cultural and political upheaval, this would have to be similar.
Radical changes to the basic structure of the Supreme Court will invariably face huge opposition from conservatives who will frame such changes as a power grab by Democrats angry about Kavanaugh. They would also face challenges from Democrats afraid of the potential political backlash to such bold proposals. But progressives must fight back against such criticisms. Making the Supreme Court more accountable to the public may not happen for along time, but that's not an excuse to cease pushing the idea. It's crucial push the envelope, as it expands the realm of what's possible.
Dan is a writer, thinker and occasional optimist in this random, chaotic world. You can follow him on Twitter @danescalona77.