Is Senate supermajority key to Supreme Court nominations?

Is Senate supermajority key to Supreme Court nominations?
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I wrote an opinion piece earlier this month arguing that term limits for Supreme Court justices are the best way to fix the confirmation process. I proposed that the change be made by constitutional amendment. I have since concluded that I was only half right. A constitutional amendment is essential, but a much simpler change of requiring a Senate supermajority to confirm Supreme Court justices could be just as an effective step.

First, because the level of distrust is so high between the political parties, amendments to statutes or the rules of the Senate are much too fragile to make the kind of lasting change that is needed. For that reason, any fix to the process embodied in a statute is barely worth the paper on which it is written when legislative power inevitably shifts from one party to another. Therefore, despite the uphill battle to amend the Constitution, if it can be achieved, it will be permanent, or at least as close to that as possible since an amendment can always be repealed, as it was for prohibition.


Second, while I continue to support 18 year terms for Supreme Court justices, with regularized appointments in the first and third years of each presidential term, there are nonfrivolous objections to some aspects of that idea. Among these are that lifetime tenures are preferable to even long term limits, that the regularized appointment process would be even more political, and that every presidential election would be about the Supreme Court. Finally, the change, which seems rather modest to its supporters, is seen by others as quite radical.

Instead, I propose a simple constitutional amendment, under which a Senate supermajority would be required to confirm Supreme Court justices. Can there be any doubt that, with lifetime tenures and the power to rule on our most significant constitutional issues, Supreme Court justices are indeed special and their appointments justify a special rule?

There may likely be objections to this proposal, but one charge that cannot be leveled against it is that it is radical. Since at least 1917, Senate rules required two-thirds of members to invoke cloture and obtain a vote on a pending legislative or confirmation matter. The Senate rules were changed twice before 2017, when it was decided that the filibuster no longer applies to the approval of presidential nominations.

Thus, although the filibuster was rarely employed to prevent a judicial nomination from reaching a final vote in the Senate, the supermajority requirement was always there and in the mind of the president when he made his selections, especially for Supreme Court justices. Given this history, enacting a supermajority requirement would actually be much closer to returning to tradition rather than breaking with it.

The main reason for a supermajority requirement is that the president would be much less inclined to pick a highly partisan nominee or one who was very young and could serve for 40 years. The requirement would apply to both parties, so refusal to support a qualified “middle of the road” nominee like Merrick GarlandMerrick Brian GarlandSupreme Court can prove its independence — or its partisan capture The Hill's 12:30 Report: Dems seize on Ukraine transcript in impeachment fight Brett Kavanaugh debate exemplifies culture war between left and right MORE would be seen as a purely political decision for which every senator would be held accountable at the polls.

To ensure that other delay tactics could not be used in the confirmation, a provision requiring a final vote within 120 days could be added. To be sure, no constitutional amendment can hope to foil every ploy, but the amendment would bring with it the moral force of a decision of the people that every president is entitled to have a vote on his Supreme Court nominee, no matter what the circumstances may be.

The last question is perhaps the least important. How many votes should be required? The Constitution requires two-thirds of the Senate to approve a treaty, but today most international agreements bypass that difficult route and are enacted as ordinary legislation. My own preference would be for 55 percent, but 60 percent would be acceptable. I would also make the vote an affirmative requirement so that vacancies and absences counted against the nominee. Finally, I would use percentages as in the treaty clause rather than absolute numbers because someday we may add some states like Puerto Rico or the District of Columbia, and any addition should not make it easier to reach the needed supermajority.

Ideally, Supreme Court nominees would be seen by the public and the Senate as obvious choices, no matter which president chose them. Consensus in our current circumstances is not possible, but with a supermajority requirement, presidents whose party controls the Senate will no longer be able to push through the most partisan credible nominee, but will have to find someone closer to the center. Requiring a Senate supermajority is a concept familiar to most Americans that shows some promise of turning down the heat on the Supreme Court confirmation process, a goal that should be supported by all of us.

Alan Morrison teaches constitutional law as a professor and is the Lerner Family Associate Dean of Public Interest at George Washington University.