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We can depoliticize the judicial confirmation process: Here’s how

It is sad that every U.S. Supreme Court vacancy sets off a political feeding frenzy in Washington and throughout the country. It is as if any new appointee is expected to be a super legislator rather than an impartial arbiter of disputes between and among citizens and the government. The whole appointment process is infused with political overtones.

The confirmation process for Supreme Court nominees has long been a dog and pony show. Many enquiring senators use their allotted time to score political points, rather than asking pertinent questions. Nominees are carefully coached to provide generic answers that nobody actually believes. In recent years, the process has turned into a well-rehearsed, politically-charged charade. It generates more heat than light. 

The committee hearings and floor debates give the public the idea that the Supreme Court is the ultimate lawmaking body in the country. In many respects, it has become just that since the Trump years. As the Court’s commanding Republican majority has taken on a muscular legislative role, the Court’s public approval rating has descended to 40 percent, its lowest point in 20 years. With an apparent agenda that promises to move it ever further to the right, it is likely that the Court’s approval rating will fall even lower. 

The Court’s declining approval rating can be laid at the feet of all three branches of government. When candidates for Congress and the presidency put such great weight on changing the make-up of the Supreme Court, they lend legitimacy to the belief of voters that the Court is a political body.

Former President Trump explicitly promised that he would appoint justices who would carry out his conservative agenda, including the overturning of Roe v. Wade, and he did just that. His three appointees have carefully followed the GOP playbook on a variety of issues, disregarding their confirmation pledges to respect stare decisis, or legal precedent. Is it any wonder people suspect the Republican members of political decisionmaking?

Public confidence in the judicial system is essential to our democratic system of government. If people come to believe that the highest court in the land is making decisions based on the political outlook of its members, rather than the law, it is extremely detrimental to the credibility and maintenance of the system. Rather than furthering the partisanship on the Supreme Court, Congress should be exploring ways to depoliticize the appointment process. It can be done.

Consider how Idaho, one of the reddest states in the country, was able to remove most judicial appointments from politics. The Idaho Constitution calls for the election of all members of the Idaho Supreme Court. In 1967, the state enacted legislation to insulate judicial appointments from politics and cronyism. Lawyers can still seek membership on the Court through the nonpartisan election route, which I must admit to having done. But about four out of five are appointed through a merit-based system when a vacancy occurs.

When there is a trial or appellate court vacancy, a seven-member Judicial Council gathers information on judicial candidates, publicly interviews the candidates, considers input from the legal community and public, and then sends a slate of between two and four candidates to the governor for appointment. The procedure has worked well and resulted in a corps of professional judges who decide all sorts of legal disputes in a non-political, even-handed manner, both at the trial and appellate levels.

Although it could not be implemented for Supreme Court appointments without a constitutional amendment, the Idaho template demonstrates that there are ways to depoliticize the process. A vetting procedure similar to Idaho’s could be implemented on the federal level without transgressing Article 2, section 2 of the U.S. Constitution, which gives the president power “by and with the Advice and Consent of the Senate” to appoint judges of the Supreme Court.

It seems like the Senate could, as part of its advice and consent, provide for a nonpartisan commission of constitutional scholars, lawyers and judges to interview, evaluate and rate presidential nominees prior to bringing them up for a vote on the Senate floor. Senators would have a more realistic, less partisan, view of the qualifications of nominees before casting their vote.

One interesting side benefit of the Idaho procedure is that appointees do not feel compelled to spend an entire lifetime on the state supreme court, possibly because they do not have the heavy burden of carrying their party’s political water ‘til death do they part. There are other ways to bring about much-needed turnover to the Supreme Court, but reducing some of the politics from the appointment process would help.

Almost any system for appointment of justices to the Supreme Court would be preferable to the usual slugfest that the current process has become. Presidents appoint people whose political views align with theirs on specific hot-button issues, disregarding the fact that justices are honor-bound to rule upon the law instead of their own political preferences. Public confidence in the judicial system has severely deteriorated as a result. The decline will continue unless we replace the primacy of politics with the rule of law.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice of the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.

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