Gage Johnson, Staff Editor

November 22, 2024

 

After this November’s Presidential Election, some liberals are calling for Justice Sonia Sotomayor to step down before the next administration takes office.[1] The calls for Justice Sotomayor’s resignation are out of fear about her dying in office, as the late Justice Ruth Bader Ginsburg did, giving President-elect Trump another appointment that will alter the balance of the Court.[2] Additionally, Liberals argue that even if Justice Sotomayor survives another four years, Democrats are not likely to regain control the United States Senate for at least another decade.[3] Justice Sotomayor is currently 70 years of age.[4] Persons assigned the sex of female at birth in the United States lived on average 80.2 years in 2022.[5] However, liberals often point out that Justice Sotomayor has type one diabetes to strengthen their argument.[6]

 

The appointment process for federal judgeships became highly politicized in 2013. Harry Ried, who was the United States Senate Majority Leader at the time, got his Democratic colleagues in the Senate to end the filibuster for lower federal court judges.[7] Senator Reid took this extraordinary measure after 41 Republicans consistently blocked the two-thirds majority vote needed to approve President Obama’s lower court nominees.[8] Predictably, just three years later in 2017, under a Republican controlled United States Senate, Senator Mitch McConnell got his Republican colleagues in the Senate to end the filibuster for United States Supreme Court nominees.[9] Thus, now only a simple majority vote in the United States Senate is needed to “advise and consent”[10] on all federal judicial nominees. Arguably, one-third of the United States Senate blocking a democratically elected majority from confirming a judicial nominee is bad. However, the Public’s increased perception of the Supreme Court as political is worse.

 

Public confidence in the United States Supreme Court is at its lowest point in three decades.[11] Many United States Citizens view the nine Justices of the Court now simply as politicians in black robes. This is concerning because a free and independent judiciary is key to upholding the rule of law in a democracy.[12] If the public views the Court as an extension of politics, then the Court’s role in our constitutional democracy is weakened. Public outcry for a Justice to resign because of partisan politics is the type of danger that President George Washington alluded to in his 1796 Farewell Address.[13] Justices have a duty to uphold to the United States Constitution, unless they cannot fulfill their constitutional obligation, they should not be ousted by party politics. However, once hundreds of years of public trust is eroded it is not easily regained.

 

Democrats and Republicans must reach a compromise that de-politicizes the nomination and confirmation process for federal Judges and Justices. Since the founding, Supreme Court Justices have served on the Court for life.[14] This system worked fine however times have changed.[15] Justices and Judges are no longer approved by the Senate based on their qualifications for the job but rather based on their own personal jurisprudence.

 

Term limits are the way to de-politicize the Court. In 2021, President Biden established a Commission to investigate possible reform measures.[16] The Commission recommended an 18-year term limit system that would give each president two nominations.[17] The Commission made this recommendation after gathering testimony from scholars and legal professionals across the ideological spectrum.[18] Additionally, the Commission found that Chief Justice Roberts, Justice Kagan, and Justice Breyer have expressed benefits to term limits.[19] However, our elected leaders have yet to engage in a serious bipartisan effort to pass the Commission’s recommendations into law. Until then, the Court’s role in our constitutional democracy remains in limbo.   

 

[1] Justin Jouvenal & Tobi Raji, With Trump win, focus turns to older Supreme Court justices, The Washington Post (Nov. 6, 2024), https://www.washingtonpost.com/politics/2024/11/06/supreme-court-trump-nominees-sotomayor-thomas-alito/

[2] Id.

[3] Id.

[4] Id.

[5] Kenneth D. Kochanek, Sherry L. Murphy, Jiaquan Xu & Elizabeth Arias, NCHS Data Brief 492 (2024).  

[6] Jouvenal, supra note 1.

[7] Jackie Calmes, Column: Remember Harry Reid for doing what had to be done – nuking the filibuster, The L.A. Times (Dec. 30, 2021), https://www.latimes.com/opinion/story/2021-12-30/harry-reid-appreciation-judicial-filibuster

[8] Id.

[9] Id.

[10] U.S. Const. art. 2, § 2, cl. 2.

[11] Joseph Copeland, Favorable Views of Supreme Court remain near historic low, Pew Research Center (Aug. 8, 2024), https://www.pewresearch.org/short-reads/2024/08/08/favorable-views-of-supreme-court-remain-near-historic-low/

[12] Margaret Satterthwaite, The Role of an Independent Judiciary in Protecting Rule of Law, World Justice Project (Jan. 3, 2023), https://worldjusticeproject.org/news/role-independent-judiciary-protecting-rule-law

[13] National Constitution Center, Farwell Address (1796), https://constitutioncenter.org/the-constitution/historic-document-library/detail/george-washington-farewell-address-1796 , (last visited Nov. 10, 2024).  

[14] U.S. Const. art. 3, § 1.

[15] Diane P. Wood, Why Term Limits for Supreme Court Justices Make Sense, Brennan Center for Justice (Aug. 19, 2024), https://www.brennancenter.org/our-work/analysis-opinion/why-term-limits-supreme-court-justices-make-sense

[16] Id.

[17] Id.

[18] Jessica Gresko, Supreme Court commission talks positively of shorter terms, The Associated Press (Oct. 15, 2021), https://apnews.com/article/us-supreme-court-judiciary-term-limits-congress-f5362dc896887a9ed7b09e7450863ada    

[19] Id.