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Meaningful change to the Supreme Court? Check with the Senate

Despite interest in overhaul, chamber would likely be a check

U.S. Senate floor,

The new White House commission to study potential changes to the Supreme Court will also have to grapple with how to change the Senate, where confirmation clashes have exposed just how much power the senators have to shape the high court.

President Joe Biden last week asked the commission to study, among an array of proposals, whether the current lifetime appointments should end in favor of terms limited to something like 18 years, staggered so that each president gets an appointment every two years.

Advocates of such change say that it would make the court’s ideological makeup better reflect the country’s and that there is support for the idea from across the political spectrum.

One big catch: When a justice’s term ends, the Constitution still gives the Senate final say over who fills that vacancy.

And Republicans demonstrated for the first time in 2016 how a Senate majority can decide not to fill a vacancy at all, when they declined to act on President Barack Obama’s nomination of Merrick B. Garland to fill the slot of the late Antonin Scalia. Garland is now attorney general under Biden.

Stumbling block

As much as the Garland episode helped reignite efforts to overhaul the Supreme Court and led to the new commission, it also illustrated the unlikelihood of any major legislative changes since it would require the Senate to weaken its own power to approve a president’s high court appointments.

A recent academic article looked at how current term limit proposals would play out in real life and concluded that any Supreme Court term limits overhaul “would also need to address the rules governing a hold-out scenario of Senate inaction on a president’s nominee.”

Depending on the term limit proposal, 62 (or 75 percent) of past Supreme Court vacancies would have come during periods when the Senate and presidency were controlled by different parties, four professors of law and politics found in their article, “Designing Supreme Court Term Limits.”

It was written by Adam Chilton, a professor at the University of Chicago Law School; Daniel Epps and Kyle Rozema, associate professors at Washington University School of Law; and Maya Sen, a professor of public policy at Harvard University’s John F. Kennedy School of Government.

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And under some proposals, 11 percent of the vacancies would have occurred under the Garland scenario, when it was both the last year of a presidential term and the Senate was controlled by the opposition party.

“If refusal to act on the other party’s nominees becomes the norm, these scenarios could quickly derail any meaningful reform,” the article states.

While the article doesn’t address calls to expand the number of justices on the Supreme Court, it’s easy to imagine a situation in which those new slots go unfilled if the Senate is controlled by the opposing party to the president.

Bypassing the Senate

California Democratic Rep. Ro Khanna pitched one possible solution in a bill he introduced in September, saying it was the first time Supreme Court term limits had been proposed in legislation, rather than as a constitutional amendment, which entails a more difficult path to becoming a reality.

Khanna’s bill has a provision that if the Senate doesn’t act on a nomination within 120 days, it will have waived its “advice and consent” authority and the president’s nominee will be seated as a justice.

That would address a situation like Garland’s, “although importantly it would not prevent the Senate from simply holding a vote and voting down any nominees by the president,” the academic article points out.

Gabe Roth, the executive director of the nonpartisan group Fix the Court, which backs Khanna’s bill, said voters would have a chance to remedy that situation.

“The assumption is that a series of failed or voted down SCOTUS nominees would in time be punished at the ballot box, and the Senate (or presidency) would switch hands,” Roth said in an email.

There have been other suggestions that are a bit more heavy-handed. Perhaps if the Senate doesn’t confirm a nominee in a set amount of time, “a third party of some kind” could directly appoint a justice, the academic article states.

Another proposal would require the president and the Senate to be “confined together until a nominee has been approved” while imposing a “salary and benefits freeze” on all of them.

And the academics pitch the idea of a “penalty” for the party in control.

“One possibility would be to penalize the Senate majority’s party by depriving the next president from that party of nominations to which she would normally be entitled,” the academic paper states. “Such a provision would thus deprive a further president of the very advantage which the Senate was attempting to seize.”

Todd Ruger is legal affairs staff writer, covering the Supreme Court, Congress, and Department of Justice, at CQ Roll Call.