Opinion | Less Divisive Ways to Pick a Justice

 nytimes.com  10/13/2018 5:01:34 PM  2

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We asked readers how to make confirmations less partisan and contentious. Here are some of their ideas.

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CreditCreditDamon Winter/The New York Times

To the Editor:

I would propose a constitutional amendment that has three components:

(1) Staggered 18-year terms for the Supreme Court, so that each president may nominate two justices per term to the Supreme Court (with vacancies and recusals in-between to be filled by “senior justices” who have already served on the court). This would hopefully lower the stakes a bit and prevent either party from dominating the court.

(2) A higher threshold for approval in the Senate for all federal judicial nominees (I’m partial to two-thirds, since that is already the threshold for removal). This would discourage the nomination of unqualified or partisan nominees and would preserve the legitimacy of the courts by requiring wide support.

(3) A requirement that the Senate vote within 120 days of receiving any nomination to the federal judiciary. Let’s call this the “Merrick Garland Amendment.”

Michael Daly
Washington

To the Editor:

Of course there is a better way to confirm a justice. It is the old way. It is highly unlikely that either Justice Neil Gorsuch or Justice Brett Kavanaugh would be on the Supreme Court if Mitch McConnell had not expanded the so-called “nuclear option” to the Supreme Court, making it possible to confirm a nominee to a lifetime appointment with just a narrow majority.

Demand that the Senate reinstate the rules for allowing the filibuster and requiring the 60-vote threshold.

Alison Didier
St. Paul

To the Editor:

Could we improve the process of confirming presidential appointees? Probably, but the real problems revealed by the Kavanaugh debacle lie in the people involved, their actions and their values. The rank partisanship displayed, the refusal to seek truth and the reduction of a seat on the Supreme Court to one more patronage plum are testimony to the debased state of our politics. Structural reform will do little to improve matters.

It is up to us. If the American people want to make our politics better, we need to make clear with our voices and our votes that we will no longer stand for a process that ignores the needs of the nation, and elevates reward of donors and defeat of the other party to the supreme principles of governance. We can blame those with whom we disagree, but the responsibility for what has happened, and for change, is ours.

Jonathan J. Margolis
Brookline, Mass.

To the Editor:

The New York Times would not be asking about “a better way” if Brett Kavanaugh had not been confirmed. The question of whether confirmation process changes are needed should be understood to mean changes that would make sure a Republican president’s nominees are not confirmed.

There are lessons going forward. For a Republican president, nominate only women to sit on the Supreme Court, for reasons that are obvious from the beneath contempt Democratic assault on a male nominee, Brett Kavanaugh. For the Democrats, keep in mind that such an assault can backfire, as may well turn out to be the case in the help it gives to the G.O.P. in the coming November elections.

Donald Nawi
Scarsdale, N.Y.

To the Editor:

The Kavanaugh debacle resulted more from the Supreme Court’s institutional design than from the confirmation process. Reform should be directed to the way the top court is organized. Today the court is composed of nine justices who sit together to decide the 80 or so cases accepted for review each year. This arrangement makes filling vacancies when the ideological direction of the court is at stake even more controversial.

Double or even triple the number of justices and randomly select panels of nine justices to hear cases. Such a proposal would not require a constitutional amendment. Congress has adjusted the number of Supreme Court justices before. And the federal judiciary already has experience working with randomly selected panels in the appeals courts.

Randomly drawn panels would naturally produce variation in the combinations of justices nominated by Republican and Democratic presidents, and an enlarged court would increase diversity. There may be other welcome consequences over time, such as increasing the number of cases accepted for review, lowering the political stakes in filling each new vacancy, creating incentives for presidents to nominate more moderate justices and reducing the influence of a swing justice.

Michael C. Tolley
Dedham, Mass.
The writer is a professor of political science at Northeastern University.

To the Editor:

The lesson learned from Brett Kavanaugh’s recent, divisive and ugly confirmation hearings is that this process is now hyperpartisan. The only way to improve it is to decouple it from politics. Nominations should no longer be made by the president. The Constitution should be amended so that the nominee is chosen by a bipartisan (equal members from both parties) special committee of legislators. They would have to find common ground in a nominee who could appeal to both sides, someone who is qualified by a record of objective and balanced jurisprudence.

Daphne Case
Norwalk, Conn.

To the Editor:

One simple but concrete step would be restoration of the filibuster, thereby encouraging nomination of more moderate judicial candidates by both parties. (I painfully recall that, when the Democrats resorted to the so-called “nuclear option” in 2013 for all nominees except for the Supreme Court, Republican senators angrily warned that this decision would ultimately come back to haunt them.) Unfortunately, in the current toxic political environment, it’s doubtful that either party will willingly concede any advantage, however transient.

Recently, while watching the film “RBG,” I was struck by the fact that — only 25 years ago — Justice Ruth Bader Ginsberg was confirmed by a vote of 96 to 3. Her confirmation was accompanied by gracious comments from her philosophical opposites, such as Orrin Hatch. Sadly, it’s difficult to even imagine such a scenario today.

Emanuel Saidlower
Oceanside, N.Y.

To the Editor:

Many scholars have argued that term limits for Supreme Court justices would go a long way toward depoliticizing the nomination process. Perhaps. But the problem is not so much with justices, who tend to become more independent-minded as they age. The problem is with senators, who usually become more partisan over time. They are the ones who need term limits.

Daniel Bernstein
Sacramento

To the Editor:

The Constitution does not provide enough checks on the Supreme Court. Five judges can undo an achievement by the president and hundreds of legislators. One vote on the court can swing the course of history. The Constitution should be amended for a better balance of power. One possibility would be to require the court to have at least a two-thirds majority to overturn a decision by Congress or reverse an earlier court decision. Some change is needed to reduce the extreme importance of one appointee.

Jenna Weart
New York

To the Editor:

I would propose that the Republican and Democratic leadership get together and agree on limits of future background checks. Specifically, teenage years should be off-limits. No more high-school yearbook trolling.

Steve Miller
Redington Beach, Fla.

To the Editor:

No changes in the confirmation process itself are needed.

The lesson going forward is that members of the Senate need opportunities to come to know one another not as politicians but as human beings. They need to do things together to increase civility and cultivate true collegiality.

Where are you from? What did your parents do? What did you do when you were in grade school? Do you like to fish?

Maybe they could be required to have breakfast together every morning while in session, or lunch. No speeches! No media! And let the waiters be slow bringing their orders, so that there is plenty of time for them to chat.

Charley Kempthorne
Olympia, Wash.

A version of this article appears in print on , on Page SR8 of the New York edition with the headline: Less Divisive Ways to Pick a Justice. Order Reprints | Today’s Paper | Subscribe
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