A Better System for Appointing Justices to the U.S. Supreme Court
By: Andrew Johnson
Tags: Politics, Policy, Policy Debates, Political Reform, Supreme Court

Appointing new Supreme Court Justices is one of the most important and influential functions of the president and Congress. Though it seems a democratic system would enable each president and session of Congress to have equal influence in shaping the Supreme Court, this is not the case. Historically, some presidents and sessions of Congress have had substantially more opportunity to appoint new justices than others. This is a flaw in the current system. To fix it, we could create a system that is fairer to elected officials and that better represents all citizens over time.

The Problem

The Supreme Court Justices currently serve lifetime appointments. Though the original intent is sound, lifetime appointments have led to inconsistencies in the level of power each elected official has over the court’s make-up. Justices leave the court for various reasons — resignation, retirement, impeachment, death, etc. When they don’t leave the court at a consistent rate, the resulting power to appoint new justices is unequally distributed across presidential terms and congressional sessions.

When citizens vote for a president or members of Congress, they know these officials have the ability to name new Supreme Court Justices. The likelihood of them actually exercising this power, however, is a lottery at best. Depending on the year, we get a weaker or stronger version of Congress or the president when it comes to naming new justices. In an ideal system, the executive and legislative branches’ ability to fully execute their governmental powers wouldn’t vary from term to term.

Our flawed current system of appointing justices to the court has received minimal attention in the last 30 years because the number of court appointees per president appears to have been roughly equal (mostly by accident, or possibly savvy timing by retiring justices). Presidents Bill Clinton, George W. Bush, and Barack Obama all appointed two justices each during their respective two terms in office, but this glosses over substantial differences in appointments across congressional sessions:

Of the 12 Clinton-Bush-Obama era congressional sessions, only three (25%) confirmed one or more justices to the court. The other nine sessions (75%) didn’t confirm any justices.

Since 1945, 43% of congressional sessions have confirmed zero justices to the court, 30% have confirmed one justice, and only 27% have confirmed two justices.

Prior to the Clinton-Bush-Obama era, there were also significant differences in appointments across presidential terms:

Presidents Harry Truman, Dwight Eisenhower, and John F. Kennedy (+ Lyndon Johnson) all appointed four or five justices each over two terms — double the appointment rate of Clinton-Bush-Obama.

President Richard Nixon appointed five justices in five years (a majority of the court!) while President Jimmy Carter appointed zero justices over four years.

President Ronald Reagan only appointed one justice in his first term, but President George H.W. Bush appointed two in his first term.

And, right now, President Donald Trump is on his second appointee in two years and could possibly appoint as many as three more (given the ages of the current justices).

In the current system, some presidents or sessions of Congress get to wield much more influence on the Supreme Court than others, simply due to timing. But a better system is possible.

The Solution

A new system could get rid of lifetime appointments for justices and could impose tenure limits on the length of service for each one—a reform idea that has already been proposed elsewhere.

The original intent of a lifetime appointment was to ensure judicial independence. But sufficiently long tenure limits for justices can achieve the same effect. Tenure limits wouldn’t affect justices’ actions during their time on the court; they would simply shorten their time on the job. Tenure limits would also stabilize the rate of new justices replacing existing justices over time, solving one of the major problems with our current system.

The main aspects of the new system would look like this: