Article III of the Constitution, the one dealing with judges, is short, only three sections and one defines treason. The other two are the only official guidance we have to determine how the courts should be constructed and judges confirmed. It does make clear that judges can hold office only while practicing “good Behaviour.” It reads like my mother wrote that part.
Beyond that it is up to tradition to decide who sits on the supreme and inferior benches of the U.S. court system. I’m not dissing on District Court and Court of Appeals judges. I’m simply referring to them as they are noted in the Constitution; “inferior.” The Constitution also provides for the president to appoint, for life, and the Senate to confirm the appointments of all these judges. It may seem like “we the people” are kinda left out in the cold. But, our role as citizens is to elect officials who understand and honor the role of judges in our representative system. We need to take extra care because impeachment for bad “Behaviour” is the only way to correct an errant appointment. We don’t get to elect another batch of federal judges every so often.
Beyond acting right, the Constitution doesn’t define the type of person who should be a federal judge. Thomas Jefferson thought they were a bad idea all around. The landmark 1803 Supreme Court decision in Marbury v. Madison established judicial review and with the life appointments, Jefferson said, “you seem to consider the judges as the ultimate arbiters of all constitutional questions: very dangerous.” He thought this system led to “despots” and “oligarchs” in the judiciary and those “ultimate arbiters” should be the people.
Judges are given life terms to free them from political impulses and help them decide impartially free from reelection concerns. The caveat here is that with a completely independent judiciary, the people have no say in how they are ultimately governed. It is easy to see the courts as a check on legislators and executives, and it is equally easy to see Jefferson’s fear of a judicial oligarchy with courts rife with polarized, like minded judges.
We have to rely on original intent. In the beginning there were no political parties. George Washington served without affiliation. That didn’t last long. Federalists (Alexander Hamilton was one and Washington would surely have been one) and Democratic-Republicans (Jefferson et. al.) soon evolved. Partisanship is accepted/expected in the executive and legislative branches of government, but to comply with checks and balances, the judiciary must not be. Judges deserve to have their personal opinions and vote their conscience. But, to be sure, our system works to its fullest when judges rule, they absolutely eschew those personal biases.
The best way to ensure that moderate federal judges are appointed is to make the confirmation process more stringent. There has never been a law that makes a Senate confirmation of 60 votes the rule. Historically the 60-vote threshold that involved a vote for cloture was seen as a positive procedure to be sure presidents thought about impartiality and moderation when making judicial appointments. As our country has become more partisan, especially over the last 30 years, those procedural norms have been torn down. Specifically, retired Senate Leader Harry Reid (D-NV) invoked a “nuclear option” of 50 votes for the inferior judges and Senate Majority Leader Mitch McConnell (R-KY) finished off the process by voiding the 60-vote threshold for Supreme Court nominees. With Senate parity, the modern trend–51-49 or even 50-50 votes with the vice president breaking ties–court nominees will seldom have wide confirmation support. This is the exact scenario that Jefferson feared leading to disastrous, politically partial judicial decisions.
I’m pretty sure we are in for a generation of 5-4 Supreme Court votes on a variety of decisions. 5-4 votes should be deep in the minority, but have become the current norm on hotly contested issues the court hears, even on long established law. With a partisan court, political issues can be force-fed into the review system and the preferred outcome of the slight majority assured. If the balance of power swings away, the decisions can be reversed. Our laws should not be subject to mood swings.
At some point Congress needs to address this as the serious problem it is. If the Senate would decide to make confirmation of federal judges equal to that of ratifying treaties (67 votes)–what the heck, make it 75 votes–it would force presidents away from seeking ideological partners with nomination pre-agreements for appointment and bring the court into line with the intent of checks and balances with moderate thinking–do we dare say apolitical? –nominees. If the threshold were higher–by law–naming a politically extreme theorist would be seen as a presidential failure.
Judges knowing that becoming a federal judge would take a strongly bipartisan Senate confirmation would serve as a reminder to those with ambition to consider all their rulings based on the Constitution and established law, keeping their personal opinions far removed from professional decisions. An added value could be well-considered, nuanced, literate opinions for us to read forming a solid base for future law.
We ask that politicians put country above party, and it is not too much a stretch to require judges to put the Constitution above political theory as well.