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February 24, 2021

U.S. Supreme Court: Time for structural reform?

Polarization across the country and among political parties has affected the Supreme Court nomination and confirmation process and amplified calls for structural reforms of the nation’s highest court, according to a panel of legal experts at the American Bar Association 2021 Virtual Midyear Meeting.

The four panelists shared their views at the Feb. 22 program, “Is There a Case for Structural Reform of the U.S. Supreme Court?” presented by the Committee on Issues of Concern to the Legal Profession. Judge M. Margaret McKeown of the U.S. Court of Appeals for the 9th Circuit served as moderator.

“There is a concentration on outcomes over qualifications,” said Miguel Estrada, partner in the Washington, D.C., office of Gibson, Dunn & Crutcher. “Each party is a support chorus for its team” and fail to reach across the aisle when it comes to the nomination and confirmation process for justices. “We used to have a system that looked at qualifications,” he said, adding that now many people instead look more closely at how a candidate will potentially vote on certain issues.

“We are in a hyper-partisan moment in this country,” said Sherilynn Ifill, president and director-counsel for the NAACP Legal Defense and Educational Fund, pointing out that the federal courts, from which many Supreme Court nominees are selected, need to be strengthened and diversified. A basic criteria for a nominee should be experience as a lawyer, one who has tried a case in court.

Neal Katyal, law professor at Georgetown University Law Center, said heated rhetoric resides among the justices and that a tremendous amount of hypocrisy exists in the nomination process. “A lot of people I know who are great will never want to be put in the shoes to go through that process,” he said. “That’s an unfortunate thing,” adding that the same yardstick should be used for potential candidates regardless of their political party.

Despite the polarization of the country, Estrada said, the Supreme Court maintains a high reputation among the public and remains “an exemplar of what’s right with the government.”

While people have overstressed the divisiveness in the confirmation process, said Stephen Carter, professor of law at Yale Law School, in recent years one in four nominees have withdrawn, not received a vote or have been voted down, the same as in the past. What has changed is the percentage of people who have voted “no” on a nominee has increased over the last couple of decades, he said.

Carter recalled the time when he served as a law clerk for Justice Thurgood Marshall, who he said had tremendous respect for his fellow justices, even those who disagreed with him. “It is crucial for the court to be an institution worth respecting” and to search for consensus. “That’s dying out,” he said. “Some justices write to be read. … The inability to speak with one voice is a tragedy.”

When it comes to structural reforms for the court, the panelists had varying views. Katyal said he was a fan of an 18-year limited term for justices, which would help curb presidents from looking for younger people to serve lifetime appointments and perhaps prompt them to “look for a little more wisdom.”

Estrada said he doesn’t see a need for term limits or adding more justices to the court. “The current system has served us well for a long time.” But he called for the president to “pick the best person” and the Senate to concentrate more on a candidate’s “jurisprudence, temperament and qualifications.”

“The best protection for integrity of the bench is the selection of judges with individual integrity,” Carter said.

Ifill said is important to have a broader conversation about the court itself and the message it sends about the rule of law and the justice system to the public.  “The court has a special responsibility … to present themselves in a way that suggests the law works as a legitimate force in our democracy and there’s not a thumb against” the people on the lowest end of the totem pole in society.