CUMBERLAND — Almost everyone would agree that the process of appointing and confirming U.S. Supreme Court nominees is broken. The trend toward appointing more ideologically extreme candidates to the nation’s highest court not only ramps up the partisan divide in the country but also undermines confidence in our judicial system and the rule of law.

I propose a de-escalation to put us on a path toward appointing justices to the Supreme Court – and, ideally, all other federal courts – who are judged first on their judicial qualifications and have to earn the support from a broader range of the political spectrum. We need to return to requiring Supreme Court nominees to have the support of more than a majority of the U.S. Senate. The downward spiral began in 2013, by then-Majority Leader Harry Reid, D-Nev., invoking the so-called nuclear option for executive branch appointments and the federal courts below the Supreme Court. No longer would 60 votes be needed to move the nomination to a vote on the Senate floor. Reid’s successor, Mitch McConnell, R-Ky., true to his word, extended the simple majority vote process to the Supremes in 2017 with the nomination of Neil Gorsuch.

When Supreme Court nominations needed 60 votes to move forward in order to avoid a filibuster, nominees from the extremes – either left or right – faced a challenge. There needed to be bipartisan support. No single party has had 60 or more Senate seats since 1979. Having to get some support from across the aisle tended to discourage the ideologues whose beliefs and judicial philosophy are identified with one extreme or the other. One could hope that senators will cross the aisle to support a candidate who may be expected to lean in the ideological direction of the president who nominated her or him – but who may fall into the category of a swing vote, whose judicial decisions will turn more on the facts and precedents of a case than on a previously developed judicial philosophy.

We are losing confidence that any judge will be a neutral umpire – calling the balls and strikes like they see them. Increasingly, the first thing a litigant wants to know about the judge hearing their case is who appointed them to the bench. It undermines the rule of law when we think the decision of a lawsuit will turn on who makes the ruling rather than what outcome is dictated by the law and the facts.

When should this return to the nomination process of the past be implemented? If Joe Biden is elected president, should the Democrats first get to fill a reasonable number of judicial seats – and maybe a Supreme Court vacancy or two? Do they get a chance to make up for the damage of Merrick Garland’s being refused a confirmation process for nine months of 2016? What if Justice Ruth Bader Ginsburg’s replacement gets pushed through via naked political power, either before Nov. 3 or in the lame duck session? I am a registered Democrat, but I would argue that we should put this moderating process in place today for judicial nominations – even if it means that the Democrats, should they win the White House, would not be able to dilute the Trump-filled federal judiciary quite as easily.

We need to restore sanity to this process today. We need to restore confidence that in our federal judiciary (and some state judiciaries as well), fairness, competence and open-mindedness are the attributes of our judges – at all levels.

Enough is enough.

Only subscribers are eligible to post comments. Please subscribe or login first for digital access. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.