Thankfully, there is a possible way out of the ever-worsening deadlock that confronts us — an institutional fix that was suggested in a recent book by legal journalist Lincoln Caplan, American Justice 2016: The Political Supreme Court (which I had a hand in publishing).
Caplan proposes that the Constitution be amended so that Supreme Court justices are appointed for 18-year terms instead of life terms, with appointments staggered every two years. This would guarantee that each one-term president would get to nominate two justices, and every two-term president would get to nominate four, with the justices rotating off the court in a regular pattern every two years (except in cases of untimely death or debilitating illness). Caplan also suggests that the chief justice could automatically be the most senior justice on the court or the median justice — any mechanism that would avoid the arbitrariness of one nomination (immediately after the retirement or death of a chief justice) carrying more weight than others.
As Caplan notes, this reform of the court would likely “reduce the strife in the confirmation process, by making appointment and confirmation an every-other-year practice.” And unlike most proposals for constitutional amendments, this one would benefit both sides of our polarized ideological divide. It’s hard to see why either party would stand against it. It’s fair.