It has been a week since Brett Kavanaugh was sworn in to the Supreme Court in what was one of the most disputed and controversial processes in recent political memory. For members of our generation, who have only been active in politics for a short amount of time, the nomination and confirmation process may have seemed rushed and unfair. Although a difficult task, it is crucial to examine the Supreme Court appointment system itself, temporarily disregarding the allegations against Brett Kavanaugh and his seeming unfitness for the position.
The U.S. Senate, which votes on the appointment of Chief Justices to the Supreme Court, is a court of a hundred senators. Before 1975, cloture required a two-thirds affirmative vote. Since then, cloture has only required a three-fifths majority. The democratic senate set an important precedent in November 2013 by invoking the “nuclear option,” which bypassed the supermajority for a simple majority on executive branch nominees and judicial nominees. The current Republican Senate has become the first to use the nuclear option for Supreme Court nominees, effectively pushing through Neil Gorsuch and Kavanaugh in the past couple of years. Essentially, the division of the Senate has led to a circumvention of its own rules. The result is the appointment of an unpopular supreme court nominee just because he broadly agrees with 50 Republican senators.
This brings up another point of concern: partisanship. The Supreme Court of the United States needs to be nonpartisan. As a judicial court, it needs to work as a defender of the constitution and a check to the president’s dictatorial tendencies. However, by voting on candidates based on party lines and not on merit, the Senate has effectively turned the Supreme Court nomination process into a farce.
What happened over the past few weeks was a Republican president passing down a nominee to a Senate with 51 Republicans, who effectively blurred the lines separating the judiciary, executive and legislative branches of the government.
The streamlining of this process in recent years is a problem, one that could easily be resolved were more actors introduced. In France, the highest court of the land doesn’t obey a unique hierarchy like its U.S. counterpart because of its convoluted structure. The highest court of the judiciary is the “Cour de Cassation,” and the highest court of administrative is the “Conseil d’État.” The “Conseil Constitutionnel,” France’s equivalent to the Supreme Court has jurisdiction over national elections and reviews the constitutionality of bills, so its authority is mostly limited to French institutions and it works as a check to possible abuses of power in the government. Like in the U.S., the Conseil Constitutionnel has nine members, but they are only appointed for 9 years, cannot have their terms renewed and three are switched every three years and appointed by three different entities: the president, the Senate and the National Assembly.
This system is far from perfect, but at least achieves a better balance than in the U.S. by separating judicial authority into different courts and aligning their appointments more closely with the voting tendencies of the time (more indicative of a direct democracy). In the U.S., recent developments have made the Supreme Court the object of partisan fighting and rule-bending.
If the Supreme Court is to protect the Constitution, it must abide by the very principles of checks and balances outlined in the earliest documents that established this nation. Until the system of appointments is fixed, it will be a long road until we can trust the Supreme Court’s authority to determine what is constitutional.
Marcus Thuillier is a first-year graduate student. He can be contacted at [email protected] If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected] The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.