Political pragmatism, judicial geriatrics, and the decline of democracy

“Article 2 of the Constitution clearly states that whenever there is a vacancy in the Supreme Court of the United States, the President shall—not ‘may’, shall—appoint someone to fill that vacancy.”

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

If you read the above (wholly antithetical) statements in the context of October 2020, you’d be forgiven for attributing them to entirely different people. These are, in fact, the words of Democratic Presidential nominee Joe Biden and Republican Senate Majority Leader Mitch McConnell respectively, in early 2016 following the sudden passing of Supreme Court Justice Antonin Scalia.

President Obama was in the final year of his second term when the hugely influential ‘originalist’ conservative Justice died. He nominated Justice Merrick Garland, a moderate centrist, to fill what would be the third Supreme Court seat to be confirmed in his eight years as president.

Yet Justice Garland’s nomination would languish in Senate limbo for 293 days before expiring at the end of the 114th Congress. Republicans, led by Mitch McConnell following their majority victory in the Senate in 2014, refused to hold even a single hearing to discuss the nomination.

Although unprecedented, anyone in the know could have predicted this outcome – McConnell had spent the final two years of the Obama Presidency obstructing and preventing Democratic-led initiatives, particularly judicial nominations, from passing the Senate. He certainly was not going to let a Supreme Court Justice through, even one who was a notable centrist.

“McConnell … concluded that Republicans have nothing to gain, as a political party, from collaborating in anything that the president could then claim as an achievement.” – Sanford Levinson, Legal Scholar

This abject ‘oppositionism’ has been credited by various political scientists, historians, and legal scholars as one of the driving forces behind the erosion of democracy in the United States. But partisanship and hypocrisy certainly didn’t begin and end with Mitch McConnell. The other quote was, as mentioned, from Democratic Senator Joe Biden.

Sen. Biden supported Obama’s nomination of Justice Garland and condemned the Republicans for not following due Constitutional process at the time. Yet, awkwardly, Biden is on tape voicing his emphatic opposition to election-year nominations during the administration of George H. W. Bush in 1992.

Now, some 30 years later the tides have turned once again, as has the tide of partisan rhetoric.

The passing of progressive Justice Ruth Bader Ginsberg in September 2020 has precipitated another hurricane of shalls, shall nots, musts, and must nots from both sides of politics.

Predictably, each of 2016’s vocal opposers to election-year nominations have contorted themselves, through Olympic-level rhetorical gymnastics, to become vocal proponents of the practice. And former advocates have followed suit, with both sides marshalling along perfect, ideologically-symmetrical party lines.

Sen. Biden, executing his second successful backflip on the issue, landed squarely on the side of “the Senate shouldn’t act until after the American people select their next president and the next Congress.” – 8/10, perfect landing.

Sen. Lindsey Graham, who in recordings from both 2016 and 2018 invited listeners to “use [his] words against [him]”, has performed a majestic aerial half-twist, from “let’s let the next president decide” to “I’m dead-set on confirming [Trump’s] nominee.” – 9/10, impressive flexibility,

Leader McConnell, despite having lost some of his acrobatic skills in his later years, was still able to muster a basic somersault, launching from “the American people should have a voice”, to essentially telling the American people what their voice should be: “[Trump’s nomination] is exactly what the American people deserve on their highest Court.” – 3/10, try harder next time.

The sad truth of the matter is that the real losers here aren’t the Democrats, nor the Supreme Court, nor the American people. Only time will tell the ramifications of a Conservative majority on American society.

The real loser here is democracy itself

When elected officials change their stance on key issues based on purely partisan reasons, there is a wholesale loss of faith in government. Of course, any logical, right -thinking individual is entitled to update their opinions when presented with new information, but these people are not even trying.

It’s impossible to watch a clip of 1992 Biden, 2017/18 Graham, or 1900-2020 McConnell and see anything but cartoonishly hypocritical establishment politicians ‘towing the party line’ on issues that is supposed to be entirely nonpartisan, and people are taking notice.

A 2019 report from the Pew Research Center found that an overwhelming 75% of Americans believe trust in the Federal Government is declining. The same report found that two-thirds (69%) of Americans say the federal government intentionally withholds important information from the public that it could safely release, and 61% say the news media intentionally ignores stories that are important to the public.

The public are losing faith in the institutions that underpin democracies, and the checks and balances that are supposed to hold them to account. The foundations that hold our fragile democracies together are beginning to crumble.

And this is not limited to the United States

Pew also found in 2019 that “views about the performance of democratic systems are decidedly negative in many nations. Across 27 countries polled, a median of 51% are dissatisfied with how democracy is working in their country; just 45% are satisfied.”

In the same report, only 35% or respondents believe that ‘politicians care what ordinary people think’, 60% believed that ‘no matter who wins an election, things do not change much’, and a 54% majority believe that ‘all politicians are corrupt’.

When you consider the statements about Supreme Court nominations at the beginning of this article, you begin to understand why this may be the case.

The ‘fake news’ rallying cry of those under journalistic scrutiny has led to widespread distrust in media. Climate change denialists have eroded faith in scientific institutions, and decades of hypocrisy from those in power (coupled with weak and opaque regulation of political financing) has seen this dramatic decline of trust in government.

These are the bedrock foundations of democracy, and to lose any of them would result in an entirely different system of government – without science, you have a theocracy. Without media, you have a dictatorship. Without government, you have anarchy.

Yet this frightening decline of faith hasn’t slowed the torrent of political partisanship – those Pew reports were published 18 months ago, and since then we’ve seen the Australian government replace a Democratically-elected Prime Minister for the sake of internal party politics; we’ve seen the American President alter the path of a hurricane with a Sharpie for the sake of saving political points; and we’ve seen politicians from democracies across the globe raise open scepticism over the existence of human-induced climate change for the sake of their campaign donors.

Parties of all stripes and colours seem content to keep passing the buck onto the next generation, failing to grasp the fact that the further we sail down this path, the harder it will be to turn the ship around.

Change may be improbable, but it is by no means impossible. Amidst all the bitter partisan rhetoric about what the Founding Fathers intended, there is very little discussion about the fact that Article III of the Constitution doesn’t exactly spell out the composition of the Supreme Court in explicit terms.

In fact, since the drafting of the Constitution, the number of judges on the court has fluctuated between five and ten, via various Judiciary Acts, to compensate for the “geographic expansion of the nation and the increased caseload of the district courts.”

Further, the framing of tenure length in Article III–“Judges … shall hold their Offices during good Behaviour…”—setting aside its objective ambiguity, is ludicrously anachronistic. Provisions allowing tenures that essentially run for as long as a judge can talk in complete sentences without soiling themselves may make sense in a time when average life expectancy was 40 years.

Yet in the 230 years since these words were drafted, advances in medicine have doubled life expectancies, enabling these supremely powerful individuals to remain in office until long after the conventional retirement age. In some cases, well into ages where (statistically speaking) most people experience significant cognitive decline.

Among all democratic nations around the world, U.S. is alone in giving life tenures to the highest levels of the judiciary, and there is little justification for why this is the case. Decision makers seem more focused on turning an outdated system to their advantage than updating it.

In 2005, two legal scholars from Northwestern University–Professors Steven Calabresi and James Lindgren—recognised that the U.S. system was an outlier, and advocated for Judicial reform through the introduction of term limits for Supreme Court Judges. They had serious concerns about the declining legitimacy of the court, brought on by (among other things) the potential ‘mental decrepitude’ of those at the highest at the highest levels of the judiciary.

“…there has been a serious but relatively under-appreciated problem of Justices suffering from mental or physical health problems while serving on the Court. The illnesses have on occasion been so severe as to deprive Justices of the ability to competently handle their duties without substantial help and influence from their law clerks and other staff.”

They saw the current system as a ‘relic of pre-democratic times’ that would eventually delegitimise the judiciary, and cause significant harm to democracy itself. Many passages of their paper are near prescient:

“…the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles become much more intense… In light of these trends, many political observers expect that the next confirmation battle for the U.S Supreme Court will be one of the most bitter in our history.”

This was written prior to the appointment of Justice John Roberts; an appointment that passed the Senate in a nail-biting vote of 78-22 (/s). Since then, we’ve seen the aforementioned farcical excuse for ‘procedure’ that Justice Merrick Garland’s nomination devolved into; the (frankly embarrassing), confirmation hearing of Justice Brett Kavanaugh; and now, Justice Amy Comey Barrett’s hearings, which seemed more akin to school children attempting to swiftly wrap up their game of marbles before recess ended.

The bitterness of these procedures likely stems from the fact that most politicians will see only a handful of Supreme Court Justices confirmed in their lifetimes, and the seats vacate for entirely arbitrary reasons, such as a sudden death, illness, or surprise retirement.

Calabresi and Lindgren advocated for instituting 18-year staggered terms for Supreme Court justices via a constitutional amendment, suggesting that without reform, the United States would devolve into a gerontocracy.

As we reach the final stages of the current presidential race, and hear the closing arguments from its 74 and 77 -year-old candidates, it isn’t much of a stretch to suggest that this ship has well and truly sailed. In order to change course, there needs to be reform at the most fundamental level – the U.S. Constitution.

Fortunately, much of the research has already been done. The tricky part is convincing those in power to take action.