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With an inevitably contentious approval process looming for the latest Supreme-Court nominee, BYU political science professor Richard Davis is raising timely questions about some of the problems associated with the current nomination process. 

“We have reached a point where the process does not work well in achieving an outcome that serves the interests of the Court and the nation,” said Davis, whose books Supreme Democracy (Oxford University Press 2017) and Electing Justice (Oxford University Press 2006) explore the history of the nomination process. Even in the past dozen years or so, he said, that process has trended in a “more troubling” direction, becoming “more partisan and more divisive.”

“Since the Court affects so many lives of ordinary Americans, it is not surprising that many people want to know who is going to serve on the Court,” Davis said. “However, the more democratic process has led to an emphasis on aspects that may undermine the legitimacy of the judicial selection process and even the Supreme Court itself.”

To better serve both the interests of the Court and the country, Davis recommends the following reforms:

  • Implement term limits. “One [possible change] is to limit the terms of the justices so there is a predictability to the process,” Davis said. “If there is an 18-year term and those terms are staggered, then the process becomes less heated. Knowing when another nomination will occur, people won’t need to place so much emphasis on the current one because of the uncertainty of another.”
  • Create a bipartisan commission responsible for making recommendations to the president. Canada, Davis noted, recently created an independent commission that will recommend nominees to the prime minister. Such a system in the United States would increase cooperation between the president and Congress in making appointments — and minimize partisan fighting: “The judiciary should not be held hostage to the ideological warfare between Republicans and Democrats,” he said.
  • Close Senate hearings to television coverage, or set rules on the types of questions a senator can ask to eliminate questions on how a nominee would vote if confirmed. Right now, he explained, senators ask questions they know interest groups care about and the nominees give only answers senators want to hear. “That does not necessarily predict what they’re going to do when they’re on the Court,” he said. “Nominees have learned how to game the system. And senators know they do. Everybody knows their part in the play.” By cutting out the play and putting the questioning in a closed session, Davis said, senators would be less likely to grandstand and nominees may be more likely to be honest.

The process as it stands now begs all kinds of questions, Davis said: “Is this really how we should be running the nomination process for the highest court in the land? It’s become a political campaign that’s run much the same as if someone is running for political office. Are there ways we can do this better? Can we tinker with the system without having to change the Constitution? Can we take out the rancor from the process?”