Second, though, we do need to reform the process. From Robert Bork to Merrick Garland, this has gotten pretty ridiculous. As I spell out in the piece, I think a constitutional amendment could do the trick if it imposed 18-year term limits on future justices and made it far more difficult for the Senate to reject nominees.
In effect, we should assume that the party opposite the president will vote against nominees regardless of those nominees’ qualifications — and therefore we should require a supermajority for the Senate to reject a nominee. That way, nominees would fail only if one party held the presidency and the other controlled the Senate by a very wide margin, or if the nominee stoked a decent amount of resistance even within the president’s own party. Otherwise, the president should get his picks, the nation should be spared these toxic fights, and voters can react to each pick at the next election.
A constitutional amendment won’t happen this year or next. But the process is growing more dysfunctional with each nomination. Democrats are flirting with court-packing, though I highly doubt they’ll have the votes to pull it off. Soon, the Senate may simply refuse to confirm nominees whenever the opposing party holds the presidency. This isn’t working, and a bipartisan amendment is the only way to fix it.