The U.S. Supreme Court: It’s Your Last Job – or is it?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization. 

By Bob Brescia
October 19, 2018

Introduction

Apparently, getting an appointment to the Supreme Court is a lot harder than keeping it. Even though technically, one doesn’t need a law degree, prior judicial experience, nor meet any age requirement, the current reality is that it is a brutal process to go through a typical nomination and confirmation process. Once appointed, keeping your seat on the U.S. Supreme Court is easy, right? To keep your appointment alive and well, according to the Constitution, you just need to demonstrate good behavior once you become a justice. I believe that the framers of the U.S. Constitution were very wise in their choice of language about appointments to the Supreme Court. Still, there are some improvements that can be made along the way; some without having to change the U.S. Constitution in any way.

Two things that could be changed without a constitutional amendment:

The role of the FBI in the background check process could be modified. The Federal Bureau of Investigation (FBI) did not exist until 1908. The FBI mission is clear: to protect and defend the United States, to uphold and enforce the criminal laws of the United States, and to provide leadership and criminal justice services to federal, state, municipal and international agencies and partners. Notice the qualifier of “criminal” within the mission statement. The scope and process of an FBI criminal investigation is significantly different than a regular background check. Perhaps a policy could be considered that calls for an FBI background check/investigation of those on a short list to become nominees for the Supreme Court. It would help the President in selecting the most qualified and most able to be confirmed nominee in advance. The short list of Supreme Court nominees can be made public and therefore any person who claims to be a victim or has knowledge of criminality on the part of the nominee can come forward early in the process. The administration could set a window for that to happen; once the window is closed, no further input would be accepted.

The Senate’s “advice and consent” role. Currently, the Senate provides advice and consent (approval) on nominees to the Supreme Court. A change could be entertained in that process. Roger Sherman, Connecticut Senator, argued in 1787 that the Senate should provide that same advice prior to the nomination. President George Washington also opined such advice could be given for a pre-nomination but should remain optional on the part of the Senate. Of course, the unification of advice and consent carried the day and has been in use ever since. As a nation, we could revisit the advice mechanism, allowing the Senate to provide such advice ahead of a formal nomination. There have already been several times when a U.S. President has sounded out individual senators by floating a pre-nomination trial balloon.

One thing that could be changed but would require a constitutional amendment:

The lifetime tenure of a Supreme Court Justice. Currently, constitutional scholars continue to agree in their interpretation of Article III, Section 1, which states,

The judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Supreme Court Justices can resign at any time for any reason. Resignations are problematic in the sense that no one can stop a Supreme Court Justice from resigning simply because that justice knows either a Conservative or liberal president will choose a like-minded successor.

Supreme Court Justices can be removed through impeachment with Senate conviction. Only one justice has been impeached by the House of Representatives. Justice Samuel Chase was impeached for “bad behavior” by President Thomas Jefferson in March 1804. Chase involved himself in partisan politics by acting more as a prosecutor than a judge in several incidents. He was subsequently acquitted in the Senate.

From time to time, constitutional scholars assemble to question that interpretation, hoping to change it. In 2005, a group of scholars agreed “in principle” on a proposal to establish staggered, 18-year term limits for all future justices. This would recognize the fact that people are living a whole lot longer than in 1787 and that we might be better served by more frequent introduction of new justices.

Conclusion

The U.S. framers have again proven themselves to be among the wisest and most capable thinkers with respect to our durable nation and its judicial structures. We should visit the opportunities for improving the nomination process to the Supreme Court, almost all of which require no constitutional modifications. Although we cannot oblige the major television networks to do anything, all future hearings, preliminary of confirmational, could be televised to ensure maximum exposure and transparency. Supreme Court nominations should be a relatively straightforward and open process, with checkpoints along the way that we must respect.

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Author: Bob Brescia serves as President & CEO of STEM Software – a leading Artificial Intelligence (Ai) software provider in the Oil & Gas industry. His latest book is Destination Greatness – Creating a New Americanism. Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. He also serves as Chairman of the Board at Basin PBS – West Texas public television. Please contact him at [email protected] or Twitter: @Robert_Brescia.

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