Democratize the Supreme Court

The death of Supreme Court Justice Ruth Bader Ginsburg sent shockwaves across our nation and has left massive shoes to fill in the Supreme Court. Ginsburg’s death comes roughly two years after the Senate confirmed Justice Brett Kavanaugh and forty-some days before the next presidential election. Her untimely passing has led to the nomination of Amy Coney Barrett, a judge and law professor at Notre Dame University.

The Republican Senate is looking to confirm her nomination despite the fact they opposed former President Barack Obama’s nomination of Merrick Garland nearly 300 days before the 2016 election. Now, Democrats are crying foul and employing Republicans’ own words from four years ago against them.

Senate Majority Leader Mitch McConnell, R-Ky., spoke in 2016 about why Garland should not receive a vote in the Senate, saying “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.” His position has since changed, and on the night of Ginsburg’s death, McConnell said, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” 

As President Donald Trump looks at nominating his third Supreme Court pick in just three and a half years, Democrats are beginning to talk about changing how many judges should sit on the Supreme Court. The assumption is that if the Democrats take the Senate, hold the House of Representatives and win the presidency in November, this would allow them to pass the necessary legislation to expand the court. 

The next Congress and president should pass legislation to create an election of justices on the high court. The American people have the right to vote for the leaders of the executive and legislative branches of government, and so too do they deserve the right to vote for the highest members of the judicial system. 

If the Democrats pack the court in 2021, though, it will set a dangerous precedent for a future Republican majority in Congress and the White House. If we wish to protect women’s health, the ability to marry who you love, the right to vote, equal protection under the law and much more, then we must reform the way Supreme Court justices are seated –– not give conservatives ammunition to retaliate against the progressive platform. 

Electing justices will force the court to reflect and interpret the Constitution in line with how the general public views it. When Americans get to make a choice of justices and their ideology, the system will be more representative of our nation’s views. Much like the Michigan Supreme Court, the nine supreme court justices should be nominated by political parties and elected to eight-year terms. Any opening on the court should be filled by the nomination of the president until the next election. No individual deserves a seat for their entire life, affecting the judicial system for possibly decades. Justices should change as times change. 

Currently, 21 states select their supreme court justices using nonpartisan elections. Seventeen states have gubernatorial appointments followed by retention elections and 12 use no forms of the election in selecting justices.

The idea of checks and balances — each branch of government having an equal check on each other — would stay in place by presidential appointments to lower-level judges. This ensures that the executive branch still has equal power over the judicial branch. 

Reformation of the court is not a brand new concept, either. Former South Bend Mayor Pete Buttigieg, who ran for the Democratic nomination this past year, ran on a platform proposing upping the number to 15 and including five Democrats and five Republicans, as well as another five Independents selected by the other partisan justices. 

His plan, while sporting the potential to mend some of the wounds that our current justice system has, does not allow for the voices of the people to be heard at the highest level of our judicial system. Ten partisan judges will still disagree on appointments, and it is unclear how the partisan judges would be picked. Furthermore, it would not reflect the will of the people and rather would represent the will of the two parties in power.

The Supreme Court should be made up of judges who are elected by the people, not appointed by one individual. Americans desire a judicial system that will act in our favor and at our will. Electing our Supreme Court justices will grant the people a voice and disrupt the political gridlock in our government.

Nathan La Huis can be reached at ndlahuis@umich.edu.