Presidential Commission on the Supreme Court of the United States
partisan rancor of the confirmation process and lower the stakes of appointments by ensuring that a party controlling the White House need not wait for happenstance to be able to influence the Court. This proposal also would address the anomaly of some Presidents appointing as many as three Justices in one term and others having no opportunities to make appointments in the same amount of time. As noted in Chapter 3, this particular benefit would depend on a functional confirmation process to ensure that each President could in fact make two nominations. And ultimately this sort of proposal is most productively considered alongside term limits; unlike a system of term limits, which could eventually stabilize at a particular number of Justices, this proposal could lead to an irregularly expanding and contracting Court.
The other type of proposal that would introduce partisan or ideological balance onto the Court as a matter of design would require an even or roughly even number of Justices with affiliations from the two major political parties, on the model of independent commissions, with additional judges to be chosen from the circuit or district courts by the party-affiliated Justices.[195] This approach—sometimes called the balanced bench—might ensure some form of ideological even-handedness, and therefore moderation, which could help to keep the outcomes of Court decisions in line with public opinion. This form of balance could help induce compromise among the Justices, especially under those proposals that would set the size of the Court at an even number.[196] These virtues might in turn temper the confirmation wars by ensuring that both parties have roughly equal influence over the Court.
But it is far from clear that ideological balance is in and of itself a desirable goal. If there is no such balance in the political branches, requiring such balance on the Court could make the Court insufficiently reflective of or connected to electoral outcomes. In other words, if the goal were to ensure that the Court roughly reflects the public will and exhibits a degree of responsiveness to the political composition of the people at a given time, artificial balance between the two political parties would not achieve that objective. A balanced bench could be preferable to the status quo for those observers of the Court who perceive a significant mismatch between its composition today and the body politic.[197] But institutionalizing such a requirement would block farther-reaching change.
What is more, an explicit requirement that Justices be affiliated with particular parties would constrain the pool of potential nominees and reinforce the notion that Justices are partisan actors. Even if we accept the fact that the Justices’ judgments have political implications and ideological motivations, this close identification of Justices with political party could undermine the perception of judicial independence, which is important to the acceptance of and compliance with the Court’s decisions. It also seems likely that a “balanced
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