Everybody understands that affirmative action programs at universities are in jeopardy now that the Supreme Court has decided to revisit the issue. Everyone also understands that if the Court abandons its opinions in Grutter and Bakke, the change in doctrine will not reflect new data about the effectiveness of affirmative action or a diminution in public support for the policies.
Rather, everyone understands that the Court may override its previous decisions because the moderately conservative Sandra Day O’Connor has been replaced by the very conservative Samuel Alito. As the Court’s composition cycles from one side of the political spectrum to the other, so do its holdings.
It doesn’t have to be this way. Instead of having one partisan appointment after another, we could have one bipartisan appointment after another. In a recent post, I mentioned my forthcoming book (Two Presidents Are Better Than One, NYU Press 2013). I argue there that we can defuse partisan conflict in Washington by replacing our one-person, one-party presidency with a two-person, two-party presidency. A more consensual form of government can work in the United States as it has in parts of Europe.
Defusing partisan conflict would directly address the politicization of the judiciary. Since the defeat of Robert Bork’s nomination in 1987, the judicial appointment process has become increasingly divisive and subject to delay. The number of vacancies on the federal bench almost doubled during the first two years of the Obama Administration.
If we had Democratic and Republican executives sharing the appointment authority equally, they would regularly send moderate nominees to the Senate, and partisan politics would no longer play a role in the process. Judges and justices would be approved more swiftly, and their decisions would follow a consistently centrist path rather than a conservative path sometimes and a liberal path other times. That can do much to restore public confidence in the rule of law.