Proposals to Reduce PolarizationThe Filibuster 2005 report highlights the need for greater attention to the skewed results created by our winner-take-all Senate elections. FairVote would like to highlight reforms that we believe hold potential in reducing partisan polarization for judicial nominations. Doing so is critical, given that the processes that we use for filling the lifetime positions on the federal bench should be treated uniquely from most other government positions. Americans desire objectivity and freedom from politics in their judicial system, so while impossible to remove completely, our courts should be inoculated as much as possible from the taint of partisan politics. Two reforms that would potentially minimize this influence are slate nominations and judicial term limits. While these solutions won't solve every problem relating to our existing divisive process, they should at least be discussed to ensure that party labels do not impede Americans' access to a fair justice system.
Under this system judicial vacancies at any given point in time would all be filled at the same time, with the Senate voting on whether to confirm the entire slate of proposed judges as a group, rather than one at a time. While this system would not work for Supreme Court nominations (which typically occur one at-a-time), it would be highly effective for District Court and Court of Appeals nominees, where a great degree of partisan acrimony could be avoided in the future. The President and his/her party would nominate most of the judges on the slate, while the minority party would nominate a smaller portion of the judges. The exact percentage of nominees made by each party could be a fixed percentage or could be made to shift with the composition of the Senate. The two party's nominees would then be combined into the unified slate that the full Senate would then vote on. This would potentially create incentives for the two party's to work together on creating an overall slate of nominees who are acceptable to the full Senate, rather than having both sides merely pander to their bases.
Judicial Term Limits
Another potential reform that might reduce some of the partisan polarization, especially in Supreme Court or Court of Appeals nominations, is a term limit for judges. Rather than appointing judges for lifetime terms, judges would serve one term to last a period of 15 to 30 years (or some other fixed term that experts agree would give significant time for judges to grow in their thinking and still free them from the shifting short-term political winds). This proposal would in no way impede upon their judicial independence, in contrast to the current system of lifetime appointments which causes a panic amongst partisans who fear indefinite reigns of power from ideologically charged judges. The current system also creates incentives for ideological judges to hang onto power until their favored party can appoint their successors.
While these proposals are merely suggestions for broader discussion, we think that these and other innovative processes should considered. The current system is clearly flawed, with both parties trying to hold back the other's nominees when out of power but trying to ram through nominees when back in power. This vicious circle can only be halted through creative remedies designed to take away the incentives for partisan mischief.