SCOTUS nominations don’t have to be this painful

We’re in a tough spot as a country. Following the confirmation of Supreme Court nominee Brett Kavanaugh, America feels more divided than ever.

Much of the trouble stems from the divergence in how each of us interpreted the testimonies and associated claims relating to sexual assault. These are real and important concerns that deserve our attention.

The specific drivers behind the impassioned hearing room scene may well have been different for everyone, but it’s clear that the process was emotionally-charged to a degree that is rarely seen in American politics.

Fundamentally though, the controversy was fuelled by our de facto reliance on the Supreme Court to determine America’s most sensitive policies.

This reliance reveals a more structural problem with our politics, namely, that we have wrongly assigned supreme value to the Supreme Court. We’ve simply chosen the wrong venue to petition our government. The Supreme Court was never intended to create public policy solutions and is not equipped to do so. Thus, seeking political solutions from a judicial body will inevitably lead to disappointment.

Supreme Court nominations will continue to be divisive and chaotic until two things happen – (1) The electorate shifts its focus for petitioning its government to the appropriate branch – Congress; and (2) Congress begins to do a better job of legislating on federal policy matters, including the appropriate use of the filibuster, and deferring to lower governments on non-federal policies.

SCOTUS Mission creep
The Judicial Branch is absolutely critical to our system of government, but we have mistakenly elevated the Supreme Court beyond its intended importance. As a result, it’s now pulling double shifts.

On one hand, it carries out its constitutional duty of interpreting existing law in instances of dispute or ambiguity. On the other, it’s also looked to for public solutions on our most sensitive policy issues, such as health care, marriage, abortion, etc.

The latter role is problematic, because it runs counter to a healthy democracy. The Court is comprised of nine unelected, tenured judges. If we allow these individuals to hold real policy-making power, America is hardly the democracy it claims to be.

The mission creep of the Supreme Court is less an indictment on the Court itself and more a consequence of Congress too often abdicating its responsibility to boldly legislate or defer to states and localities on issues not directly within the purview of the US Congress as directed by the Tenth Amendment to the Constitution.

Nomination battles will only get nastier if we assume the Supreme Court is our last best hope for policy goals. Americans genuinely passionate about important issues will continue fighting tooth and nail for their preferred nominee. But this tactic is misguided, because Supreme Court decisions are necessarily one-size-fits-all solutions, which rarely accommodate the entire country.

Instead, many decisions should be kicked to individual states, and the rest should be democratically deliberated in Congress to reach a more representative solution.

There’s a better way

There is a better way, and it’s what the Founders intended – that all important and sensitive issues under federal jurisdiction that draw Americans into the fight for the Supreme Court in such an emotionally-heightened manner in the first place can and should be deliberated transparently inside the Legislative Branch. A place where 535 democratically-elected senators and representatives are made to work together to take a stance and pass legislation then face the music as their constituencies back home decide their fate in elected office.

This design provides the necessary accountability to voters and aligns with the checks and balances of federal power suitable for establishing laws that are equitable and supported in our beloved melting pot, America.

Adjusting our focus on Congress won’t prevent future sexual assault or bring justice for victims; it won’t find consensus on abortion or universal health care coverage. But an appreciation of the underlying structural problem will adjust our focus on representatives we send to Washington, which sets in motion a more democratic process that will put us on the right path for ensuring better processes and, thus, better outcomes in the future.

…and restore the filibuster
Speaking of checks and balances, the Senate was specifically chosen to be the adult in the room during such critical debates (notice the House of Representatives is not involved in Supreme Court nominations).

As the more deliberative body, the Senate established the filibuster, which provides leverage to the minority party, while concurrently establishing the corresponding power of cloture, which allows the body to proceed only with a super majority (this threshold has changed over the years and currently sits at 60 votes).

The rule has been modified over the years. But in 2011, then-Majority Leader Harry Reid eliminated the use of the filibuster on non-Supreme Court judicial nominees. In April 2018, Republicans (wrongly) took Reid’s bad decision a step further by also applying it to Supreme Court nominees, giving credence to the slippery slope argument often used against meddling with Senate rules. In doing so, the Senate has eroded its primary procedural tool that has facilitated its deliberation for decades.

This is directly relevant to the Kavanaugh confirmation, because he would not be a Supreme Court justice today if Senate cloture rules were still fully in tact. The final vote on his nomination was 50-48, the most narrow margin of passage for a Supreme Court nominee in nearly 90 years. Had the Senate’s longstanding filibuster rules still been in tact, republicans would have had to clear a 60-vote threshold to gain “cloture” and proceed with a final vote. Kavanaugh would not have received the needed 60 votes, and the Trump Administration would have been forced to find a different nominee who was more palatable to a wider range of senators.

The filibuster forces senators to move towards the middle in a bipartisan manner.

Due unto others…
Of course, those supporting Kavanaugh would argue the aforementioned scenario is entirely undesirable, because it would prevent his confirmation.

They would be correct. But it would also prevent the more liberal equivalent the next time around democrats hold the majority. We often get frustrated when desired outcomes don’t come swiftly. But, in these moments, it’s important to remember that our views, regardless of which side you’re on, will inevitably be held by the minority party at some point in the future. And, during these years, you will be glad filibuster rules are in tact.

This is admittedly tricky, because it requires the party in power to establish rules restraining themselves even after the other party diluted them to create an unfair advantage.

There’s no way to sugarcoat this. It requires the majority party to concede some power, risking near-term political victories for the long-term health of the institution. This is leadership.

We simply need senators who understand and value the long-term vision of the Senate and the critical role it plays in “cooling” heated debates and guiding national rhetoric in order to bring the country towards each other rather than dividing us.

Final thoughts

We’re in a tough spot as a country. But we’re always one step away from the right direction. Our focus should be on running better congressional candidates and democratically engaging with the Legislative Branch to achieve our desired outcomes.

Changing the Senate rules in the first place was short-term thinking at its worst. Both sides are better off if Senators exercise power in a way that treats political opponents the way they hope to be treated when the tables are turned.