The way we choose Supreme Court nominees is broken. Here’s how to fix it.
It’s worth taking a step back to realize just how broken the process for selecting Supreme Court justices now is.
In 2016, Senate Republicans responded to Antonin Scalia’s death by inventing and establishing the absurd faux principle that open seats on the Supreme Court cannot be filled in an election year. Given that America hosts national elections one out of every two years, that means, in theory, that Supreme Court seats should remain unfilled fully 50 percent of the time.
But it gets worse. Democrats, infuriated by the GOP’s treatment of President Obama and Merrick Garland, filibustered Neil Gorsuch — the kind of broadly qualified nominee who would’ve passed easily in previous eras. In response, Senate Republicans eliminated the filibuster on Supreme Court nominations.
What we are seeing here is a case of what the political scientist Steven Smith calls “Senate syndrome”: One side breaks a norm or rule, then the other side breaks another in response, and the tit-for-tat escalates until the underlying process is in ruins. That’s now happened with Supreme Court nominations.
Here, in truth, is where the past few years have left us. The minority party no longer holds a scintilla of power over Supreme Court picks. The majority party can and will jam whomever they want onto the Court, where that person will serve for life. But in times when the Senate and the White House are controlled by different parties — which happens fairly often — there’s almost no chance that any seat on the Court will be filled.