The Corner

Law & the Courts

Confirm ACB, and Then Let’s Fix the Process Going Forward

The Supreme Court (Joshua Roberts / Reuters)

Like everyone ’round these parts, I’m stoked to get Amy Coney Barrett headed toward the Supreme Court. A 6–3 originalist majority is basically the perfect balance: The liberals are firmly in the minority, but there are still enough of them to keep the conservatives from pursuing a different brand of judicial activism — because only two conservatives need to defect in a case to flip the result.

Over the weekend, though, I published a review of Ilya Shapiro’s Supreme Disorder, a fortuitously timed look at the bigger picture here. I hope you’ll read my review (and Shapiro’s book), but here I wanted to reiterate two important points when it comes to fixing the process.

First, we on the right have put up with a lot of nonsense from the Supreme Court going back 50 years. As of 1973 we had a Court with seven votes in favor of inventing a right to abortion. The Left doesn’t get to change the rules now because (once Barrett is in place) there are six justices who want to read the Constitution to mean what it actually says. Conservatives shouldn’t, and won’t, support any reform that waters down the current composition of the Court.

Second, though, we do need to reform the process. From Robert Bork to Merrick Garland, this has gotten pretty ridiculous. As I spell out in the piece, I think a constitutional amendment could do the trick if it imposed 18-year term limits on future justices and made it far more difficult for the Senate to reject nominees.

In effect, we should assume that the party opposite the president will vote against nominees regardless of those nominees’ qualifications — and therefore we should require a supermajority for the Senate to reject a nominee. That way, nominees would fail only if one party held the presidency and the other controlled the Senate by a very wide margin, or if the nominee stoked a decent amount of resistance even within the president’s own party. Otherwise, the president should get his picks, the nation should be spared these toxic fights, and voters can react to each pick at the next election.

A constitutional amendment won’t happen this year or next. But the process is growing more dysfunctional with each nomination. Democrats are flirting with court-packing, though I highly doubt they’ll have the votes to pull it off. Soon, the Senate may simply refuse to confirm nominees whenever the opposing party holds the presidency. This isn’t working, and a bipartisan amendment is the only way to fix it.

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