The Washington PostDemocracy Dies in Darkness

Opinion KBJ’s confirmation fight shows how the Supreme Court must change

Judge Ketanji Brown Jackson, accompanied by Vice President Harris, speaks on the South Lawn of the White House on April 8. (Andrew Harnik/AP)
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“It is hard to find the words to express the depth of my gratitude,” soon-to-be Supreme Court Justice Ketanji Brown Jackson declared at the White House on Friday. Her gracious acknowledgment of her ascent to the nation’s highest court follows what, in today’s light, might be called a normal Senate confirmation. And that’s precisely the problem: Her 53-to-47 confirmation vote was an unjustifiable partisan slap at the nation’s first Black female Supreme Court justice — and a sign of how off the rails judicial confirmations have become.

Unlike in other recent confirmations, there were no questions regarding her character or temperament, and no procedural chicanery in the Senate. Judge Jackson’s ascension to the high court should have been free of controversy. Some Republicans concocted absurd smears about her record to justify opposing her; others acknowledged her qualifications but complained that she probably would not rule the way they preferred — which is not the standard that has traditionally been applied to nominees.

This reflexive tendency by the opposition to deny a president a chance to fill judicial vacancies has become a new norm. And it is unlikely to end, absent intentional reforms. Easiest would be adjusting confirmation proceedings, such as Senate Judiciary Committee hearings. Rather than force nominees to endure marathon grilling sessions, senators could consider letting them answer questions over more days. Instead of allowing grandstanding lawmakers to attack nominees without limit or consequence, perhaps they should be confined to asking only questions that are relevant to the proceedings.

For a time, a group of centrist senators made a pact to vote as a bloc for all reasonable nominees, regardless of which president nominated them. Those few senators still interested in repairing the tattered confirmation process should resurrect this strategy.

A more enduring and effective change would be imposing term limits on federal judges, of perhaps 18 years, and spreading out vacancies so that each president gets to make a predictable number of appointments. This would dramatically reduce the stakes of any single Supreme Court pick and limit the element of chance when vacancies arise that could tip the court’s ideological balance.

Moreover, term limits would cut the pressure presidents feel to pick young ideologues for the court or to select only judges with similar pedigrees. More people of more varying experience would be considered to serve. Supreme Court precedent would be less likely to reflect the idiosyncratic preferences of one or two justices. And term limits would guard against justices experiencing mental decline on the bench.

This idea is neither new nor without complications. Some scholars argue it would require a constitutional amendment. Safeguards would have to be crafted to prevent judges from timing their retirements to give presidents of their preferred parties extra picks. And rules might have to be drafted to prevent former judges from taking big paydays at private companies after leaving the court. But these challenges do not eliminate the reform’s appeal. What is clear is this: Things cannot continue on their current, corrosive trajectory.

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