The Senate Should Fight a Different Battle Over the Supreme Court

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Nothing illustrates the permanent political dysfunction in Washington, DC more than the posturing over Supreme Court nominees.

The process worked to various degrees over the nation's first two hundred and twenty years. There were moments of contentiousness during the times of Andrew Jackson's and Franklin Roosevelt's administrations. Confirmation hearings have grown increasingly polarized with Robert Bork's nomination being cited as a recent benchmark for political incivility.

The Supreme Court is designed to be a check and balance with the executive and legislative branches of government and to assure Congressional legislation and Executive orders comply with the Constitutional protections required by the People of the United States. The intent is for the Supreme Court to be non-political and to value justice over the intrigues of governance and special interests.

In order to achieve that goal, the U.S. Constitution simply says in Article 3, Section 1 that a justice could hold their office “during good Behavior”. That was interpreted to be a lifetime appointment starting with the United States' fourth Supreme Court justice, John Marshall. The interpretation was based, in part, over Alexander Hamilton's Federalist Paper #78 which states, “Nothing can contribute so much to its firmness and independence as permanancy in office”. The purpose of the Federalist Papers was to simply encourage the people of New York State to ratify the new Constitution by explaining the underlying intents.

It all seems fairly straightforward but the nominating process for Supreme Court judges has become completely politicized between Republican and Democratic nominees and their ratifications. The Republicans refused to even hold hearings into the qualifications of Democrat-appointed Merrick Garland. Republicans preferred to leave the Supreme Court seat vacant until the end of the Democratic President's term with the additional missive that they would leave the seat open an additional four years if a Democrat was elected President.

Well, a Democrat was not elected President. A Republican won the Presidency and appointed Neal Gorsuch as his Supreme Court nominee. The Democrats are now using the exact same dysfunctional language the Republicans used during the past year and threaten to leave the seat open for four years until they, too, can appoint their nominee. As the minority party, the Democrats' hopes lie solely in the gentlemens' agreement known as the filibuster. There is talk the Republicans have diminishing interest in upholding their stature as “gentlemen” and may end the filibuster rules. The current President concurs.

The irony here is that, when the Democrats held the majority in the Senate, some special interest groups stated the filibuster is unconstitutional because it denies the basic principle of “majority rule” and requires a “super majority” of sixty senators to pass legislation. There are no such statements currently active.

The political parties don't actually announce a candidate as a “Democrat” or a “Republican”. Instead, the code words have become “strict Constitutionalist” or “views the Consitutional as a living document” interpreted for evolving conditions. These code words are somewhat inapplicable because the “strict Constitutionalists” think corporations are people and money is speech despite Federalist

Papers warning us about the danger of corporations and concentrated money.

Nonetheless, it's time to change the debate. The debate should be whether Supreme Court justices should serve for life. Neal Gorsuch is forty-nine years old. He can reasonably expect to apply his interpretations for at least thirty years. Clarence Thomas was appointed in 1991 and continues to apply his unwritten and unspoken opinions for his twenty-sixth year (and counting) despite legitimate concerns about his “good behavior” regarding his family profiting from special interests such as the Koch brothers.

When the Constitution was written, a thirty year-old male could expect to live to age 65. Now a person born in 1987 can reasonably expect to live to age 78 or more. Given the superlative and privileged health care justices and legislators receive, many of the justices are currently in their 80s.

It's time to break the gridlock and pass a Constitutional amendment that limits a Supreme Court justice's time in office to ten years without the possibility of reappointment. That would insulate the justices from political currents, assure a vibrant turnover of judicial thought, and remind all government officials that it's called “government service” not “government entitlement for life”.

The Democrats need to open this discussion for the good of the country. The Neal Gorsuch appointment should be filibustered quoting the exact logic and quotes proclaimed by the Republicans. All of the Democratic statements should begin, “According to the words of the great American statesman, Mitch McConnell (or Ted Cruz or Richard Burr),……” and fill in the blanks with their exact words denying even a hearing for the Democrats' nominee to the Supreme Court. Political hypocrisy needs to be exposed. Structural solutions must be made. Amend the Constitution to provide term limits for Supreme Court justices.

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