Despite its size, the US is not very good at soccer. In fact, until recently, the US didn’t even have a team that could contend internationally. Now, a common refrain is how the US should borrow certain approaches used by foreign teams in order to get better.
But soccer isn’t the only arena in which the US should be borrowing strategy from overseas. The US Supreme Court confirmation process is broken. Its many shortcomings will once again get full scrutiny now that President Obama has nominated Solicitor General Elena Kagan for the Supreme Court.
As with soccer, the US would benefit from the judicial system experiences of other countries, especially South Africa.
South Africa has adopted an approach to selecting judges for its highest court that ensures the seating of highly competent jurists without the extreme politicization that characterizes the US process.
Political polarization has turned the process into a bloodbath where a nominee’s every word, even if spoken decades before, is scrutinized to find ammunition for potential opponents.
Not only does this ensure that the nomination process is a spectacle, it has produced cautious statements from potential nominees to minimize political attacks and enhance a nomination’s likely success. No wonder during his own hearings, Justice Clarence Thomas said he had basically not spoken in his life with anyone about his views on Roe v. Wade.
More recently, Justice Sonia Sotomayor stated that the job of a Supreme Court justice is to do little more than apply the law, as if following a mechanical formula. Sadly, she downplayed the real, open-ended legal discretion that the highest court in the land possesses.
In South Africa, the post-apartheid constitutional democratic experiment is less than 20 years old. Yet, despite its short history, the 11-member Constitutional Court is one of the most esteemed in the world.
The justices are selected through a three-stage constitutional process that begins with the establishment of a judicial service commission. In America, such a commission would be made up of the Supreme Court’s Chief Justice, as well as representatives of the federal judiciary, the legal profession, law academia, and Congress, as well as the US Attorney General and several presidential selections.
The South African commission selects a host of possible candidates for any opening, interviews them (via a public hearing), and forwards a number of names to the president that is three more than the number of openings. (For one opening, the commission forwards four names.) The president then makes the final decision. This process reduces politicization substantially because members of both parties must come together and discuss candidates who are presumably acceptable generally.
With this process, the months-long character assassinations of US high court nominees don’t happen. There are still political disputes, but they are reduced.
Moreover, nominees are viewed as esteemed lawyers or judges, not simply as political allies.
Several other nations, and even a few US states, successfully use a similar approach. The US federal government should follow suit. It would enhance the US Supreme Court’s stature. It also would be consistent with Obama’s promise of bipartisanship.
Making the change would not even require a constitutional amendment. The commission could be established by federal law, and some of its members could serve limited terms. As the US Constitution requires, the president would still nominate the justice, and there could still be hearings in the Senate, but the hearings should become pro forma.
A question might arise as to whether it is legal for the sitting judges and legislative officers to play consulting roles in the judicial appointment process. Yet since their roles would be purely advisory, and since the Supreme Court has ruled that judges can be involved in a sentencing revision commission, it seems unlikely this objection would succeed.
In South Africa, justices can serve up to 12 years. This is the equivalent of two full terms in the US Senate, so implementing term limits, which would appear to require a constitutional amendment, might be a good idea to ensure the president looks for the most qualified justice, not a relatively young one.
Adopting term limits for judges, as well as changing the entire selection process, would be as radical as when the US Soccer Federation reluctantly adopted FIFA standards for rules and calculating league standings. Then, that change was met with its fair share of resistance. But it led to the US hosting the 1994 World Cup, establishing a major soccer league, and strengthening its national teams to contender status on the eve of the 2010 World Cup in South Africa.
If that nation can be a showplace for America on the largest world sports stage of all, it could also serve as an example to an improved Supreme Court confirmation process.
Mark Kende is a constitutional law professor and the director of the Drake University Constitutional Law Center. He is the author of “Constitutional Rights in Two Worlds, South Africa and the United States.”
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