Yes, President Trump has the power and right to nominate a justice. Senate Majority Leader Mitch McConnell (R-Ky.) has the power and right to bring a nomination to a floor vote. But should they? No. Not unless they also win the upcoming election. They should not press their victory from the last election so far as to make this appointment now.
Novelist Ralph Ellison argued that democracy should be governed by an ethic of “winner take nothing.” That is surely too much to ask, but neither can democracy be sustained by McConnell’s mantra, “Winners make policy; losers go home.” After all, there are always winners and losers in democratic politics. Democracies work only if both winners and losers have reasons to stay in the game.
The answer in a healthy democracy lies in between. Winners get to chair decision-making processes in which losers also are expected to take part. We need a reset back to a place where winners seek to win losers over, not press their advantage over them to the last point.
Eighteen-year terms for justices would help lower the stakes in the necessary way and give us that reset, as my colleague Charles Lane wrote. Federal legislation could, of course, accomplish this, as was recently proposed in the American Academy of Arts and Sciences commission report that I helped chair, but there is no hope of that at this moment in time.
In the near term, it’s up to the justices. We need the eight who remain to take it upon themselves to lower the stakes of any given Supreme Court appointment. If they could voluntarily establish a term-limits regime for themselves, presidents would no longer have the chance to shape the judiciary for a lifetime over the course of an eight-year administration. Every president would have the chance to appoint two justices in each term. This would meaningfully ratchet down the intensity of our politics and give the judiciary a fighting chance of making its way back above the fray.
Both the left and the right think the degree of politicization now afflicting the appointment of justices is a significant problem for our country, but each seems to approach that problem with a surprising degree of fatalism. Thus, the editorial board of the Wall Street Journal writes:
It’s a shame that the Court and the judiciary have become so central to American politics, but that is the legacy of decades of judicial activism. Even as we honor Justice Ginsburg, there is no escaping that political reality this year.
And the New York Times writes this:
Everyone who cares about the integrity of the nation’s highest court has been dreading a moment like this — the death of a justice as Americans are already casting their ballots in the most contentious and consequential presidential election in living memory.
The kind of heroic act I’m calling for has precedents on smaller scales. I served as the first term-limited trustee of the Mellon Foundation, then a $6 billion foundation, after a group of trustees with life terms decided to term limit themselves to 10-year terms because they had come to understand that life tenure left their institution in an unhealthy position.
Of course, the degree of power the justices of our Supreme Court would have to give up is much more significant. But to hold that power for 18 years is no small thing. Surely it should suffice for a mortal.
Our Supreme Court justices hold in their hands the power to begin the healing of our republic. May they use it. They would be following George Washington’s noble example.