The battle over Ruth Bader Ginsburg’s successor on the Supreme Court reveals just how much the courts have become part of partisan politics.
Presidents can propose justices right up to their last day in office. Historically, Congress has respected judicial appointments made by presidents, even if their views conflicted with the policies of the Senate majority.
Sen. Mitt Romney erred when he claimed that the Senate usually rejects nominees in election years when the president and Senate represent different parties. But, in 2016, the Republican Senate would not even consider President Obama’s nomination of Merrick Garland, made many months before the election.
Senate Majority Leader McConnell claimed the people should choose the president and the president should choose the justice. President Trump eventually made the appointment.
Now, less than two months before the next election, McConnell has switched his position again. He wants a Trump nomination to be quickly confirmed in near record time. Dutifully, many GOP senators, like Romney, have come up with tortured explanations for reversing their 2016 position.
Unlike them, Sen. Collins sticks to the 2016 GOP position, however wrong it was. She says she won’t vote before Election Day on Trump’s nominee.
While Trump holds office, Republicans want to stuff the federal courts with as many conservative judges as possible. Beyond the Supreme Court, Trump and McConnell are packing the federal courts with conservatives, often with little regard to their competence and without careful scrutiny.
Federal judges serve life terms, so the Republicans’ reach could extend decades beyond their hold on the presidency or Congress. A conservative Supreme Court could long have the last word on federal policy.
In effect, McConnell has made clear that the Supreme Court, supposedly removed from politics, is always up for grabs.
If the GOP holds the Senate, expect more of the same. If Joe Biden and a Democratic Senate emerge, expect their own power play. They could continue McConnell-style political tactics to restore balance on the Supreme Court.
They could simply pass a law enlarging the membership of the Supreme Court and other federal courts. Based on workload, that’s easy to justify.
The nine-member Supreme Court handles many fewer cases than in the past. A half century ago, it decided 140 cases. In the 2019 term, it decided only 53, the lowest since the Civil War. More justices might help restore its capacity.
The lower courts are so overloaded that the use of magistrate judges, who assist district court judges, has exploded. In an increasingly litigious society, only 870 federal judges are expected to deal with a population of about 330 million.
In 1936, President Franklin D. Roosevelt proposed adding justices to the Supreme Court to protect his policies from being overturned by long-term conservatives. After he was overwhelmingly reelected, sitting justices switched sides, allowing him to drop the unpopular plan.
There is another, less drastic, solution. In fact, faced with the mounting number of federal cases, it is already used in the district courts. The solution is to create one or more temporary Supreme Court openings.
That sounds impossible, because federal judges are appointed for life. Here’s how it works.
Congress creates temporary positions to which the president makes the usual lifetime appointments. Temporarily, the previously sitting judges and the new judges filling the added positions constitute an enlarged court.
As vacancies occur, the temporary positions must expire. The “temporary” judges move automatically into the vacant slots. Without further congressional action, the court returns to its original number of judges unless Congress chooses to make the temporary positions permanent.
The use of temporary positions is an efficient way to fix a problem that need not be permanent if the president and Congress ever revert to traditional constitutional practices. The potential of temporary positions might discourage the abandonment of constitutional custom.
In 1863, Congress applied this approach in practice. For five years, there were 10 justices of the Supreme Court. Finally, an open slot was eliminated. The last time Congress created temporary federal judges was 2013, and there are 10 extra district court judges.
If Obama and McConnell had agreed on this approach, the regular Supreme Court appointment could have gone to Brett Kavanaugh with a temporary slot created for Garland, who would now take the Ginsburg seat.
The make-up of the court would not have changed, but it would have reflected a balance between a Democratic president and a GOP Senate. Supposedly, that’s what the public wants.
The use of temporary slots would fix an obviously unfair situation, which may itself be temporary, without opening the possibility of continual permanent increases under each president.