Politicization of the Judiciary Creates Public Distrust
How Exactly Can we Fix it?
In American politics, the courts are the ones who settle disputes between various actors, whether it be a disagreement between the other branches, or if a question arises about the constitutionality of a state or federal law. In these cases, the U.S. Supreme Court has the final say on these types of disputes. However, the current composition of our federal court system today has drastically changed as a result of polarization. While federal courts claim that they are independent and don’t want to be seen as a political entity, it is hard to separate the two in today’s political climate. The problem that American democracy is facing today is the politicization of our federal court system, which in turn, can create distrust and delegitimize the institution.
History:
In the 1900’s-1990’s, a nominee to the district, circuit, or Supreme Court by the sitting president could have easily gotten 70-80 votes in the U.S. Senate (Bork and Thomas were exceptions). That is because that while senators would not agree with the nominees from a policy standpoint, they knew that they were qualified for the position and believed that their experience and qualifications are what matters most. However, that began to take a drastic change in the 21st century. After the death of Antonin Scalia in 2016, then Senate Majority Leader Mitch McConnell vowed to block any nominee that President Obama would try to put forward to replace Scalia on the U.S. Supreme Court, as in his eyes, doing so would give the democratic appointees on the Court a majority, and McConnell was not going to let that happen. This signaled that he knew he could use the Court as a political institution to push his agenda through, and it paid off. After Trump’s 2016 election victory, he nominated conservative appeals court judge Neil Gorsuch to fill Scalia’s vacancy, and his nomination passed through the senate, mostly along party lines.
So, why is This a Problem for Democracy? What Can be Done?
Originally, courts were supposed to be seen as these political neutral entities that would settle disputes, but Mitch McConnell’s actions signaled a drastic shift in American politics; the courts could be used as a political tool, and it has been ever since. The first Trump administration was able to get 234 federal judges to the bench, and the Biden administration was able to get 235 federal judges confirmed. The sheer number of nominations by both parties shows that they know how increasingly political the federal judiciary has become and have relied on these judges to carry out their political agenda for decades after they leave office. But this is a problem. Both major political parties playing games with court confirmations can create distrust and delegitimize the judiciary, as Americans will begin to see courts as political institutions rather than neutral arbiters of the law, but there is an easy solution for this, a mandatory retirement age for federal judges or term limits. Most people may say that this solution would raise serious constitutional concerns, but I think it could be potentially possible for Congress to pass some type of legislation that incentivizes federal judges to retire.
What would Democratic Thinkers Say?
Two thinkers that would be appalled by the structure of that system today would be Alexis de Tocqueville and John Locke. It is known that in Tocqueville’s writings, he commended the American judicial system for its commitment to protect individual rights from those who were in the majority, and in Locke’s writings, he emphasized the importance of the different political branches by stating how they should stay in their own lane. However, both thinkers view on that system is drastically different as compared to their time. Now, the majority in congress can control the composition of the federal courts, and in turn, those in the majority on the appellate and Supreme level can impose their own policy agendas on us and change how we live our everyday lives, but in my view, while severely limited, congress does have the authority to change this system that has been decreasing in terms of public trust by those in the American public.
How Would These Solutions Stop Politicization of the Judiciary?
I believe that if Congress could enact legislation to incentivize federal judges to retire after they reach a certain age, it would stop them from having to act strategically and time their retirements, as we have seen in the past that judges time their retirements so that they can have a successor who matches with them from an ideological standpoint. While term limits would be virtually impossible to pass without a court fight, it could be done by constitutional amendment, but that would be difficult to do. However, this solution would drastically reduce how polarized the confirmation process has become, and their would not be as much fighting and confirmation battles if they do not end up serving for the rest of their lives.