Monday, April 3, 2017

How to Craft a Non-Partisan Constitutional Court: The Case of the U.S. Senate Confirming Justices

In interpreting a constitution, justice is best carried out when the justices are non-partisan rather than politically ideological. To be sure, every living and breathing human being has a political ideology, even if implicitly. Even so, the institutional process by which justices are chosen can mitigate this point by being oriented to non-partisan candidates. In other words, a system can be designed so as to minimize the likelihood that a partisan of one political party or another will sit on a constitutional court. The confirmation of Neil Gorsuch to sit on the U.S. Supreme Court can provide some insights in this regard.

The U.S. Senate Judiciary Committee meeting on Gorsuch's nomination on April 3, 2017. (NYT)

With the U.S. Senate’s Judiciary Committee having voted 11-9 along party lines to advance Gorsuch’s nomination to the full Senate, Sen. Chris Coons of Delaware voiced his intent to join the planned filibuster against the nomination. He said he wanted to “ensure the process to fill the next vacancy on the court is not a narrowly partisan process, but rather an opportunity of both parties to weigh in and support from members of both parties.”[1] A narrowly partisan process could be expected to produce a narrowly partisan justice, or at the very least to enable such a nominee to get through. In contrast, making support from a sizable number of senators from the minority party a requirement would make such a nomination unlikely. Instead, nominees whose views do not mirror those of one party would easily manage through the requirement. Were such nominees justices on the Court, its own decisions would be less likely to reflect familiar ideological differences wherein there are “conservative” and “liberal” justices. Instead, their more salient differences would be on judicial philosophy, which does not line up on the more political fault-lines such as “liberal” and “conservative.”

In the U.S. Senate, the filibuster requirement of 60 votes (in the 100 vote chamber) would ensure that a successful nominee gets at least some support from the minority party. In terms familiar in the E.U., the requirement of a qualified-majority vote—a “supermajority”—ensures that a choice is more widely accepted than would be the case on a more narrowly partisan basis. Ideally, both parties should confer with the U.S. President so he or she nominates someone who is acceptable to both parties. Then it would be very improbably that the justices sitting on the U.S. Supreme Court would be ideologically partisan (i.e., identify themselves as liberal or conservative). To a good jurisprud, those labels should mean little, especially in the legal context of interpreting law. My point is that a system or process of selection can be designed such that such judges tend to be the ones who get through unscathed.