David Litt is a former speechwriter for President Barack Obama and author of the upcoming "Democracy In One Book Or Less: How It Works, Why It Doesn't, and Why Fixing It Is Easier Than You Think." The opinions expressed in this commentary are his. View more opinion articles on CNN.
(CNN)As every American student learns in high school history class, the judiciary is supposed to be independent of partisan political agendas. But judicial independence is increasingly under threat.
The most recent example of this politicization came from Wisconsin last week. There, Supreme Court justices are elected rather than appointed, and in the last decade, a flood of campaign contributions from major political donors and a series of bitter campaigns have left the court's majority closely aligned with Republicans.
As a result, when GOP state lawmakers were unable to overturn Wisconsin's stay-at-home order -- first issued in March by Democratic Gov. Tony Evers and extended until May 26 by the state health secretary -- they were able to turn to friendly judges on the state Supreme Court. Last Wednesday, the court's conservative majority struck down the governor's order in a 4-3 ruling.
By overturning the stay-at-home order, the court flouted the wishes of a majority of Wisconsinites, according to a recent Marquette University Law School poll. It also subverted the state's elected chief executive and put countless lives at risk.
It might be easy to assume that what occurred in Wisconsin last week is isolated to one state, or to states where judges are elected. After all, most federal judges are appointed for life, which was intended to insulate them from the "temporary passions of the public, and allow them to apply the law with only justice in mind, and not electoral or political concerns." But the federal judiciary is also at risk of becoming politicized -- which could have disastrous consequences for the rule of law and for the checks and balances established by the Constitution.
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An unprecedented strategic effort to politicize the federal judiciary began in the 1970s, when conservative donors began pouring money into law schools in an effort to shift American legal thought -- including that of judges -- to the right.
But the attack on judicial independence really took off in the 1980s. To an extent unmatched in American history, Ronald Reagan saw the courts as a way to shift American policy in the direction of his political views. In the book, "The Federalist Society: How Conservatives Took the Law Back from Liberals," authors Michael Avery and Danielle McLaughlin write that the Reagan administration took unprecedented steps to screen nominees and ensure their conservative orthodoxy, going so far as to ask them how they would rule in specific future cases -- questions long considered inappropriate in judicial nominations.
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Former Presidents George H. W. Bush and George W. Bush took the system Reagan created and expanded on it, and under President Donald Trump, the trend toward partisanship has only accelerated. "Judicial confirmations these days are more like political campaigns," said Leonard Leo, co-chairman of the Federalist Society, which is now a 65,000-member strong network of conservative lawyers with ties to the majority of Supreme Court justices.
The White House website now talks about "flipping" circuit courts as though they were swing states, language recently echoed by Senate Majority Leader Mitch McConnell.
Some recent presidents -- while picking judges who shared their interpretation of the constitution -- have explicitly tried to reduce the politicization of the judiciary. Former President Bill Clinton relied on senators -- of either party -- to suggest possible nominees from their home states, and prioritized racial and gender diversity over ideology while making judicial appointments.
And former President Barack Obama's first judicial nominee was centrist enough to win the support of the head of the Indiana Federalist society. "We went out of our way to find candidates who couldn't be called liberal activists, who wouldn't be controversial at all," said then-White House Counsel Gregory Craig. But looking at the federal court system overall, the fact remains: today, a majority of Supreme Court and circuit court judges have been chosen through a politically minded screening process that did not exist 40 years ago.
It's hardly surprising that defining Supreme Court decisions of the past decade -- such as 2013's Shelby County v. Holder, which gutted the Voting Rights Act and led to a wave of restrictive voting laws that disproportionately target Democratic-leaning nonwhite voters -- have a decidedly political bent.
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So appointing rather than electing judges is not, by itself, enough to prevent the politicization of the federal judiciary. What can we do to ensure that federal judges are less inclined to act in a partisan manner on the bench?
We can start by setting higher ethical standards for judges themselves. No branch of government is as dependent upon its reputation for independence as the judiciary. Yet remarkably, the Supreme Court -- which sets the tone for the entire federal bench -- is exempt from the basic conflict-of-interest requirements that apply to other public servants and judges. In 2007 and 2008, for example, Justices Clarence Thomas and the late Antonin Scalia attended what the Washington Post described as "private political meetings" sponsored by conservative billionaires Charles and David Koch.
Lower-court judges would have been in violation of their code of conduct if they had engaged in partisan behavior, and required to recuse themselves if future cases presented conflicts of interest. If we want to make it less tempting for politicians to pack our federal courts with partisan judges, higher standards that maintain judicial independence are a must for the highest court in the land.
We should also change the way that judges serve. The Constitution makes clear that once confirmed, federal judges appointed under Article III remain on the bench until they retire, die or are impeached. No wonder filling a judgeship with a political ally is so enticing to politicians.
While we cannot do away with lifetime appointments without an amendment to the Constitution, there are ways we can reduce the political value of each judge's nomination. When it comes to the Supreme Court, Gabe Roth, founder of the non-partisan group Fix the Courts, argues that Congress has the power to establish 18-year terms for justices. At the end of those 18 years, that justice would continue to serve, but be rotated down to a lower court. Similarly, appeals court judges could be rotated to lower district courts after serving their term, or placed on "senior status," which would automatically create a new vacancy for a president to fill.
Which brings us the final way we can change the incentives around filling the bench with political operatives: if a court-packing effort does prove successful in the short term, new judicial seats should be created and filled as soon as possible to undo its harmful effects and restore balance. In practical terms, this means that Democrats should create one new judgeship for each of the over 100 lower-court positions that were held vacant when Trump took office, as well as the Supreme Court seat held by Scalia, which Obama was blocked from filling. This would allow Democrats to effectively cancel out McConnell's obstruction of most judicial nominees during the final two years of the Obama administration. If Democrats ever block a Republican president's entire slate of nominees, Republicans should do the same. This would create a new norm in the Senate, one that dramatically reduces the long-term effectiveness of holding seats open for political gain or filling them with partisans.
Most importantly, Americans must recognize that the judiciary only holds its extraordinary power and status because it upholds its end of a bargain: rulings from the bench must be neutral and impartial, favoring no party or ideological group. If judges break this essential promise, reforming the courts isn't just an option -- it's the responsibility of our government's elected leaders.
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We shouldn't take that responsibility lightly. We can't dismiss every ruling we don't like as partisan, nor should one power grab be used as an excuse for another. But when a situation arises like that in Wisconsin -- a seemingly partisan ruling on a flimsy pretext that puts lives at risk -- it threatens the safety of all Americans, Democrat, Republican, and independent alike. Only by taking thoughtful but bold action now can we ensure that the Wisconsin Supreme Court's decision remains a cautionary tale, rather than a glimpse into a far more dangerous future.
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