Grassroots/Hank Kalet

Transform the Court

Donald Trump is proving to be a transformative president — which is bad news for our democracy. We focus on the tweets and the racism, but his real impact is happening under the radar, as he fills open court seats with men and women who are likely to serve for decades. This court packing — enabled by a Republican Senate majority with an assist from Democratic Minority Leader Chuck Schumer — means that efforts to craft progressive solutions to climate change and economic inequality, and efforts to rein in the proliferation of guns, to limit police power and protect the rights of racial, religious, and sexual minorities are unlikely to stand.

Given that Trump’s court appointments are a threat to our future, it’s time we look at how our courts are structured, appointments are made, and whether lifetime tenure makes sense going forward.

Article III, Section 1, of the US Constitution says the federal judges are to “hold their offices during good behaviour,” a phrase that has been interpreted to mean “for life.” This was done, says Northeastern University law professor Michael Meltsner, “to preserve the total independence of the judiciary.”

For much of our history, this insulated the court from political considerations and political attacks, and it’s one of the reasons President Franklin Delano Roosevelt’s scheme to remake the court by adding members failed. But the court is not held in the same esteem today as it was in the 1930s, after years of right wing attacks on the institution as “activist,” and a series of very public and partisan confirmation hearings and decisions, with liberals now expressing the same critiques (with more legitimacy, I’d argue) about the activist nature of the court.

While the court still gets higher approval ratings than the other two branches, 538 reports that “confidence in the court has been declining over the past 30 years.” As Amelia Thomson-DeVeaux and Oliver Roeder wrote in October, Gallup polling indicates “the public has slowly become more disillusioned with the Supreme Court over the past few decades.”

In the 1980s, majorities routinely reported that they had “a great deal” or “quite a lot” of confidence in the court. Gallup’s latest polling from earlier this year, though, found that only 37% had “a great deal” or “quite a lot” of confidence.

Meanwhile, the same fault lines that are dividing American politics also appear in perceptions of the court. A Gallup poll released (in September) shows that women’s approval of the Supreme Court has dropped 6 percentage points in the past year, resulting in a 17-point gender gap.

And this is just the Supreme Court. The lower courts are facing similar legitimacy and political issues. As the Washington Post reported in February, “Trump has installed a historic number of federal appeals court judges for this point of a presidency, with 30 confirmed by the Senate after two years of his term.” The judges he’s seated “predominantly are male and less diverse than those tapped by his recent predecessors,” and they are much younger than in the past, meaning “Trump’s conservative imprint on the federal judiciary through sheer longevity will endure through cases involving state gun regulations, the environment, immigration and abortion.”

This lack of demographic and political diversity is why we are starting to hear from court watchers that reform is needed. Court-packing is back on the table, as are mandatory retirement ages, fixed terms, and other changes to the way judges are appointed and how long they can serve.

My preferred approach would be set 18-year terms, staggered to ensure every president gets to leave his or her mark on the court. We also need to require that the Senate do its job — make it mandatory that the Senate votes yes or now on a court nominee within a set time frame, with failure to vote being taken as tacit approval.

But I’m just spitballing. There are a wide array of possibilities that can ensure turnover and diversity on the court without compromising its independence. We need to explore them going forward if we are to ensure that the constitution is read with fresh eyes and can be interpreted as the times demand.

Hank Kalet is a poet and journalist in New Jersey. Email, hankkalet@gmail.com; Twitter, @newspoet41 and @kaletjournalism; Instagram, @kaletwrites; Facebook, facebook.com/hank.kalet; Patreon, patreon.com/Newspoet41; The Medium, medium.com/@newspoet41.

From The Progressive Populist, April 15, 2019

Populist.com