By Lee Epstein. Lee Epstein, associate professor of political science judicial politics.
The Christian Science Monitor
WITH rumors abounding that George Bush may have a chance to appoint another justice to the Supreme Court, we must reexamine the process before we are enmeshed in it. As the confirmation proceedings for Clarence Thomas last fall indicated, something is seriously wrong with the way we appoint justices to the nation's highest court.
We need to take a radical step to alter the entire nomination and confirmation process - and thus the political calculus of the president and the Senate: Let's amend the Constitution and require two-thirds of the Senate to confirm Supreme Court justices. This is a drastic proposal. No one likes to tinker with the Constitution. The framers erected an intricate system of government in which manipulation of one part inevitably affects the way another functions.
But the framers had little idea of the role the Supreme Court would come to play in United States politics. Nor did they envision the role politics would play in the court's decisions. Rather they imagined, as Alexander Hamilton wrote, a court full of principled justices who would "declare the sense of the law" through "inflexible and uniform adherence to the rights of the Constitution and of individuals."
That is why the framers developed the unique system of nomination, confirmation, and life tenure: to keep justices above partisan politics. Had they foreseen courts of recent eras, courts composed largely of legal activists eager to see their values etched into law, they would have devised a different scheme.
From the beginning, presidents have tried to pack the court with partisan or ideological soulmates. After his party lost the election of 1800, President John Adams and lame-duck Federalist senators hastily appointed a host of like-minded federal judges before the Jeffersonians came into power.
Although neither the confirmation process nor the court itself has ever measured up to the Constitution's lofty expectations, at no time in the past were they simultaneously so out of control. Requiring a two-thirds confirmation vote for justices would start to realize the framers' vision.
* A two-thirds vote would change, for the better, the political calculations of the president. Presidents - be they Democrats or Republicans - would have to rethink whom they nominated to the court. To gain approval of their nominees, they would need true bipartisan support, not just a few crossover votes. …