If the major television networks are looking for mid-season replacements once the plethora of uninspired new fall programs are cancelled, let me suggest “Everyone Hates Roberts,” a sitcom which answers the question, “How did the Supreme Court of the United States’ become more despised than used car salesmen?”  [Note:  In a December 2021 Gallup survey of the most dishonorable jobs in American, only 9 percent of the respondents believed car salesmen were reputable.  The profession considered to be the most honest and ethical was nursing.]

I know, any question about the Court’s standing among Americans is the equivalent of asking, “Who’s buried in Grant’s tomb?”  All you have to do is look at the well publicized combination of corruption, conflicts of interest and 6-3 decisions in which the “originalists” suddenly lost their ability to read English.  In response, President Joe Biden has offered three reasonable proposals to reform the Court’s makeup and operations.

• Limit justices to one 18-year term.
• Enact a code of conduct for Supreme Court Justices with a mechanism to enforce violations.
• A constitution amendment that ensures a sitting president is not immune to prosecution for violations of the law during his/her tenure in office.

The reaction was mixed.  Some SCOTUS watchers think it is a good start.  Others, such a Harvard constitutional law professor Ryan Doerfler described the Biden proposal as “inadequate.”  He elaborated, describing any effort to reform the court as “a political project.”

Because judges and justices are selected by the public only indirectly, one should expect that where elite and popular opinion diverge, judicial attitudes are likely to skew even more strongly toward elite consensus than the views of elected officials.

Until last Friday, I agreed with Doerfler, but was not quite sure why his assessment resonated with me. As is so often the case, enlightenment emerged as the result of a totally unrelated event, a Washington Post headline which read,  “Senate Republicans block a child tax credit expansion.”  More importantly, the actual bill never came to a vote.  Its demise was the result of a procedural vote when, according to the Post, “The measure fell short of the 60-vote threshold required to defeat a filibuster, on a 48-44 vote.”

I then realized any attempt to change the rules under which SCOTUS operates was a dog barking up the wrong tree.  Despite term limits, an unethical justice can do a lot of damage in 18 years.   We know there are always loopholes to evade ethical standards.  And the only reason presidential immunity came before the Court is because, for the first time in American history, a former president used it as way to wash his hands of alleged criminal behavior.

It has nothing to do with any provision of Article III of the Constitution or any law related to the judicial branch.  As always, it is about the individuals who wield the power.  Which brings me to today’s history lesson since much of what ails the court is related to the role of the Senate under Article II, Section 2, Clause 2: Advice and Consent.

He [the president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

While the Founding Fathers specifically required a super-majority of present Senators to approve a treaty, they provided no such restraints on life-time appointments to the highest court in the land.  Until 1860, nominees were not subject to to committee hearings and most were approved by voice votes.  The first nominee summoned to appear before the Judiciary Committee was Calvin Coolidge’s attorney general Harlan Stone in 1925.  Judiciary committee hearings became standard procedure in 1955 though most nominees were still approved with large bi-partisan majorities.

That changed in 1987 with the rejection of Ronald Reagan nominee Robert Bork based on his opposition to the Court’s pro-civil rights opinions and his role in Watergate when, as solicitor general, he fired special prosecutor Archibald after attorney general Elliot Richardson and his deputy William Ruckelshaus refused to do so and resigned.  [Historically Ironic Note:  Samuel Alito and Brett Kavanaugh opposed Bork’s nomination and signed a letter to the Judiciary Committee which criticized Bork for being “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.” (Source: New York Times/July 26, 1987)]

The most significant change came during the Obama administration when, under Senate rules, consent of federal judges required a super majority of 60 votes.  Republicans used this loophole to block many of Barack Obama’s nominations to lower federal courts.  To resolve the backlog, Senate Democrats invoked what was called “the nuclear option,” changing the rules to require only a simple majority for lower court appointments.  Then in the aftermath of blocking Merrick Garland’s nomination in 2016, Senate Republicans applied “the nuclear option” to Supreme Court nominees.  Since then, four justices have been confirmed with the following votes:

Neil Gorsuch/54-45
Brett Kavanaugh/50-48
Amy Coney Barrett/52-48
Ketanji Brown Jackson/53-47

Though many Republicans blame this rank partisanship when it comes to confirmation votes on the way Robert Bork was treated by Democrats, the evidence proves otherwise.  After Bork’s rejection, Ronald Reagan nominated Anthony Kennedy, considered a mainstream conservative.  He was approved by a unanimous 97-0 vote.

Which brings me back to the intersection between Supreme Court nominees, this week’s vote on the child tax credit and Doerfler’s observations about Biden’s efforts to reform the court.  My question, “Why does a Senate vote on tax policy which can easily be changed within two years when voters can flip congressional leadership require a super-majority of 60 votes, and a lifetime appointment to the Supreme Court can be confirmed with a simple majority?”

It makes no sense.  One decision is temporal and should be reconsidered if voters elect a different congressional leadership, a clear signal they disapprove of policies put forth by the incumbent majority.  The other, according to Neil Gorsuch, makes decisions “for the ages,” is without accountability to the electorate.  Common sense tells us the threshold for Senate consideration of these two distinct responsibilities should be the exact opposite of what it is today.

Therefore, the first thing that needs to be done in the next Congress, regardless of the majority party, is to end the filibuster and reverse the 2017 Senate rule, again requiring a super majority to confirm Supreme Court justices.  Having mainstream left-center or right-center nominees who can garner the necessary majorities for confirmation will return confidence in the Court faster than any Constitutional amendment or new law.

For what it’s worth.
Dr. ESP