Welcoming Justice Jackson
Terry H. Schwadron
April 8, 2022
After the display of her extraordinary grace and the tension of a Senate confirmation, the Supreme Court can now welcome Justice Katangi Brown Jackson, who was advanced in a certain historic moment as the first Black woman to the nation’s top legal bench.
She has earned heroic status in outlasting baiting Republican challenges that attacked her judgment, “judicial philosophy” and personal decision-making. Maybe now we can move on to see what happens when someone with experience as a federal public defender and trial judge gets into the complex legal issues that face us. Maybe, with the end of another demeaning set of Senate challenges based on partisan politics, we can get over the question of who appointed her or whether she had to be demeaned as an affirmative action nominee to the court.
We should celebrate her by now familiar journey to what turned on a small bipartisan confirmation. Despite her record, Justice Jackson’s effort required more effort, more dedication — and, unlike some nominees, and more insistent display of stoicism through the awful personal trial that these partisan confirmation hearings have become.
Despite the troubling undertones of politics and race, of the ease with which senators can sling the word “radical” around in an examination of qualifications, of political threats and culture war, somehow three Republican senators — Susan Collins, Mitt Romney and Lisa Murkowski — managed to pull reason from political pressure to join the confirming majority.
What’s the Message?
That these “moderate” Republicans broke ranks was being depicted as a message that partisanship is out ofhand in Supreme Court nominations. In their various remarks, each of the three argued that the public challenges of Jackson moved well beyond her qualifications — which earned top marks from bar associations and other judges — to pursuit of personal and party agendas alone.
Still the bipartisan vote was a far cry from the overwhelming confirmations for such disparate thinkers as former justices Antonin Scalia or Ruth Bader Ginsburg.
Indeed, in the aftermath of the hearings, it was the bald threat from Sen. Lindsey O. Graham (R-S.C.) that hangs in the air, that any other nomination by a president of an opposing political party must meet the political objectives of Republicans or the person will not even get a hearing. Indeed, if the Republicans held majority, Jackson would not have been given a hearing.
It’s outlandish and wrong. We need another way. And yet, even the disinclination of Jackson to express an opinion about court membership that has yet to even reach a legislative proposal, was held against her by Republicans who oppose adding justices as “court packing.” Any proposal to add justices is going nowhere.
But the independent commission that Joe Biden gathered last year to look at possibilities for Supreme Court membership offered another idea that should draw new attention now.
What if there were term limits for Supreme Court justices, that each confirmed justice served for a maximum 18 years rather than for life? Lifetime terms derived from Article III of the Constitution allowing justices “shall hold their offices during good behavior,” without specifying a term. It is unclear whether a change would require a constitutional amendment or could be changed by Congress, which apparently can set the rule, or the court itself. In other words, the word “lifetime” is not written anywhere, originalists might note.
It seems on its face that term limits would improve the credibility of the Supreme Court itself and would take the sting out of these confirmation hearings. By doing so, every president would get a chance to nominate judges, and we could eliminate at least some of the posturing that we have built in for consideration of justices who can serve 40 or 50 years at a time. The court majority could alter more regularly and more in line with the way that we treat the White House or the Congress.
And we could use an ethics code for justices as well, as the evident crosscurrents of Justice Clarence Thomas ruling on election-related matters in which his wife, Ginni, is a direct participant, shows.
No Single Solution
We have two problems here. The immediate problem is undue partisanship — and the meanness associated with confirmation hearings for lifetime positions. The more important goal is rebuilding credibility for a Supreme Court that is seen as reflecting outward political goals — regardless of the “judicial philosophy” being verbalized in decisions.
While there is no single solution to winning credibility among government agencies, there are a lot of ways to lose it. The biggest risk is the perception that the court is setting out political goals first, and then seeking legal reasoning to justify it.
Justice Amy Coney Barrett felt obliged to use a speech this week at the Reagan Presidential Library to encourage Americans to read the written opinions and not assume the nation’s highest court is looking to impose any sort of political policy results.
It was an outward expression of acknowledgment that decisions that may uphold gun policies or overturn settled law on abortion are perceived essentially as political rather than legal — the very stuff of credibility.
The questions to Justice Jackson about “judicial philosophy” and remarks to decry “activist judges” were aimed directly at pressuring for positions that Republican senators want to see the court embrace — if they match Republican values.
Those outlooks are cemented in lifetime terms on the bench. Adopting term limits would go a long way towards creating a natural balancing among the court’s nine members and could help damper the fury of opposing senators.
Of course, the senators could simply stick to the job for which they took oaths, to look at the legal qualifications of nominees, and not seek to use confirmation hearings as would-be presidential campaign photo-ops.