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Those who wrote the Constitution hoped that our federal courts would “insure domestic tranquility” by resolving disputes. But a court’s effectiveness as a peacemaker depends on more than just its ability to decide cases. In order to command obedience, courts must be able to do at least three things: give a fair hearing, earn the respect of the parties and the public, and render a final decision. Justice Robert Jackson once quipped that the court is infallible because it is final. By the same logic, if it is not final, then everyone will know it is fallible. The partisan and remarkably repetitious 5-4 voting pattern that emerged in the 2006-07 term did not encourage respect for the court, and it may not have rung the final bell on any of the contests. The court would more effectively resolve disputes if the justices were less partisan. If the present justices will not change course, then more thought needs to be given to the way we choose new justices. One way to reduce partisanship among new justices would be to require a two-thirds vote in the Senate to confirm a Supreme Court justice. The court last term appeared to be not a court of law, or even a court of persons, but a court of only one person, Justice Anthony M. Kennedy. In at least 10 important cases that term, he cast the deciding vote. In each case, the lineup was otherwise the same. Kennedy’s flexibility at least gave the parties reason to believe that one justice gave them a fair hearing. If a block of five voting in ideological lockstep had decided these cases, the losing parties and their lawyers would have wondered why they bothered to show up. The split shines light on a constitutional oddity. The framers provided a way to amend the Constitution. But they created a “supermajority” anchor to hold the Constitution in place. A constitutional amendment requires approval by two-thirds of the Senate and two-thirds of the states. But today, when there is talk of changing the court’s constitutional rulings, few mention the formal amendment process. Those who oppose abortion, for example, no longer speak of an attempt to convince the Senate to pass a proposed constitutional amendment. Shortcut around amendments Instead, they focus on a shortcut: the judicial appointment process. In a 1988 memo, President Ronald Reagan’s Justice Department laid out the plan. The idea was to put individuals on the court who would roll back the court’s decisions on abortion, affirmative action and the establishment clause. The strategy appears to have paid off handsomely last term. The ingenuity of this strategy arises out of the ability of a small minority of the national voting population to elect enough senators. All it takes is 51 votes in the 100-member Senate to approve a nominee. To employ logic that Justice Potter Stewart once used, 26% of the population could in theory elect 51 senators if each state were the same size and each of those senators won with 51% of the vote. But, of course, the states are not the same size. A far smaller percentage of the total population could elect 51 senators if the senators came from the 26 smallest states. Instead of the supermajority requirements that the framers imposed, the Reagan plan sets out a superminority way to amend the Constitution. Some might argue that the 51-vote requirement does not really matter because the filibuster rule requires 60% of the Senate to cut off debate. But that requirement could be circumvented by a rules change that requires only 51 votes. That was the much-debated “nuclear option,” or “constitutional option,” that the Republican Senate leadership threatened in a power struggle over judicial nominations a few years ago. If it took two-thirds of the Senate to confirm a justice, then every president would know that the most extreme members of the other party could defeat a nominee. Princeton University provost Christopher Eisgruber, in his new book, The Next Justice, says partisan presidential nominations, not a lack of Senate leadership, have caused recent confirmation battles. A two-thirds requirement would force presidents to choose moderate nominees. The nominees would probably be lawyers or judges without an ideological track record. They would not feel that they were put on the court for an ideological purpose. They might even have that most popular of philosophies, a more modest opinion of the judicial role. Luther T. Munford is a partner in the Jackson, Miss., office of Phelps Dunbar, where he works in the general litigation practice group. He is the author of “The Peacemaker Test: Designing Legal Rights to Reduce Legal Warfare,” 12 Harv. Negot. L. Rev. 377 (2007).

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