By Brendan Flynn

"Let America be the dream the dreamers dreamed –

Let it be that great strong land of love

Where never kings connive nor tyrants scheme

That any man be crushed by one above.

(It never was America to me).”

At a time when the intrinsic value of the words has never been more in doubt (if the president says it, it must not be vile), poetry is almost revolutionary. An art that celebrates careful and efficient use of language is in conflict with the language of both our culture and our government. Langston Hughes here sums up the experience of those whose backs built America but for whom their conception of the American Dream did not exist in 1935. Those people who sought a world where they actually controlled their own destiny economically, culturally, and politically.

Although in many ways we are closer to that world today, our system of government, especially the third branch, continually brings us further from the democratic ideal of people like those Hughes references, and instead brings us closer to a necrocracy. Necrocracy, or rule of the dead, is a government run by the rules and decisions of those no longer sharing this mortal coil with the living. In other countries, this idea typically manifests as a dictator or monarch dying and the government continuing to operate under their rules. In America, it is playing out as older and older people determine policy that will largely be carried out in the decades after their death.

It’s a system often defended by Constitutional Originalists, those who believe the founders created an almost divine document that laid out a perfect guide for how to operate a government hundreds of years in the future. But the Constitution is a document reflecting its time, and we must consider the context: having just fought a war over monarchical rule, the Founders of our country were acutely aware of the danger of rule that could not be swayed by public opinion. The word they used for such deaf rule was tyranny.

In our country today, tyranny is not meted out by the current government, but by those in the ground who are in no position to change their minds – we are suffering under a tyranny of the dead.

It’s unlikely the Founding Fathers to whom originalists endow eternal wisdom would have welcomed, or could have even contemplated, a moment when a 72-year-old President would be appointing a Supreme Court justice set to serve for “the next forty or forty-five years,” as the Trump White House has said it intends. The average age of the signers of the Declaration of Independence was 44 and of the 55 delegates at the original Constitutional Convention, only fourteen were aged 50 years or older. They might actually be appalled that the people voting on that nomination in our Senate are an average of 61 years old. Although life-expectancy was shorter in the 18th century, that was largely due to higher infant mortality rates than today. The age of the aforementioned signers and framers being about 40 would be equivalent to a 40-year old today.

This November, 33 senators are up for re-election and of those, eighteen of them are already over 65 and are seeking another six-year term. By the time any nominee begins the prime of his or her jurisprudence on the highest court in the land, the people responsible for putting him or her there will be out of office or dead.

But as the average age of two branches of government has increased, the age of appointees to the highest court in the land has trended younger. Predictably, this has led to a lengthening of the average Supreme Court term: the first 10 justices all served an average of under eight years, and the first 90 averaged 15 years of service before retiring at an average age of 68. From 1971 to 2000, - the average term increased up to 25.5 years.

The appointment process has become a political process that makes little sense through the lens of justice and total sense when considered from the perspective of power. Lengthening the terms of justices has become the modus operandi for both political parties and presidents seeking to cement their influence long after leaving office. By definition, this strategy does nothing but preserve the ideological legacy of people who will not have to live in the world that their actions will create.

Even beyond the undemocratic trend of Supreme Court appointments, our current moment is unique - and uniquely perilous. As President Trump announced a second nominee to serve on the Supreme Court, Brett Kavanaugh, the stakes of such a nomination go beyond mere generational influence.

The lifetime tenure of Supreme Court justices ensure randomness in their appointment. The last several presidents have confirmed two justices but looking backward, the appointments become less consistent. Ronald Reagan confirmed four justices while his predecessor, Jimmy Carter, confirmed none. Ford appointed one justice before Carter but was dwarfed by Nixon before him who was given the opportunity to pack the court with four of his nominees.

At the end of his second term, President Obama was stymied from appointing a justice by an obstinate Senate that refused to even give his nominee a hearing. On its face, the election of any given president should have the same historical resonance as any other. It doesn’t make sense that any given president may get four opportunities to influence the interpretation of policy in this way and another may get none.

It limits the power of voters and leaves the future up to the enemy of sound government – chance. Justices to the Supreme Court should be term-limited to 15 or 18 years. This could be enacted upon the retirement of current justices until the schedule is set so that every sitting president has the opportunity to appoint two during any given four-year term. If the voters want that president to lead the country for another four years, then they should appoint two more justices with that mandate. This serves two goals that inarguably help our democracy: it takes the chance out of the appointment of the third branch of government while also limiting the longevity of any one member of the court. With term limits in place, presidents can return to the long-abandoned standard of appointing justices merely on their experience and jurisprudence and not for their youth.

Similarly, limiting tenure helps us deal with the reality of our modern world. The framers of the Constitution feared a time when those temporarily in power (Congress and the president) would overrule the will of the people. Although he famously derided the court as the weakest branch of government, Alexander Hamilton advocated for the lifetime tenure of judges in Federalist No.78 to preclude them from politics and protect the will of the people should those in power abuse it. However, in a world where the Supreme Court has decided that money is speech (Buckley v. Valeo), corporations are people entitled to donate to campaigns (Citizens United v. FEC), George W. Bush will be president of the United States (Bush v. Gore), and that there should be an incredibly high bar to prove racial gerrymandering (Abbott v. Perez), the Court is political.

Politics can most easily be defined as activities relating to the government. Our government is elected by the people to represent their interests, and thus anything affecting those people is political. The court’s decisions have had a profound impact not only on the way we conduct elections for those in power, but also in the socio-economic organization of our society. When corporations have more speech ($$$) than individuals, they have the ability to spend more money on campaigns than individual people. Regardless of how you feel about this decision (only 30 percent of the country supports Citizens United), it’s difficult to argue that these decisions haven’t shaped the country.

Perhaps it was possible to imagine a world in which the Supreme Court’s decisions would simply guide Congress in achieving the objectives of the people, but that day and everyone who witnessed it are long gone. In today’s world, actors whose businesses and political power depend on the Supreme Court’s every ruling change their tactics based on the letter of newly handed-down decisions. The world around the court has changed such that they are necessarily political actors. The best way to deal with that reality is the same way to minimize the unduly long influence of any other politician – limit the amount of time they serve.

However, the systemic flaws in the court are not what draw us to consider these questions today. Today, we have to consider all of the above in another context: Donald Trump.

For the first time in our history, a sitting president under investigation for obstruction of justice is in charge of putting someone on the court. Given the Supreme Court’s potential role in the investigation of the president, this action is at best highly inappropriate and at worst threatening the very strength of rule of law in our country.

During the Watergate investigation, President Nixon refused to turn over tapes to the second special prosecutor. He was taken to court and eventually the Supreme Court ruled he did, in fact, need to turn over the tapes and papers that had been subpoenaed. Nixon had appointed several justices in his first term but none once the investigation into his campaign’s activities began. Justice Stephen Breyer was appointed after Robert Fiske’s investigation began but before Ken Starr was appointed and the investigation into President Clinton turned from Whitewater to his use of presidential authority.

The logic here is simple: we live in a country where criminals are entitled to the judgment of their peers, not to appoint their own judges. If the president is allowed to do so, why should any other citizen not be afforded the same right?

Moreover, the argument has been made recently that there is nothing that prohibits the president from continuing with the judicial nomination process under the circumstances. While this is true, the times force us to consider questions never before relevant. For the first time we must consider the question: Should a sitting president under investigation for obstruction of justice and compromising the integrity of our elections be permitted to appoint justices to the Supreme Court? I submit to you that he should not.

Special counsel investigations into the decisions of sitting presidents are exceedingly rare. Investigations into the circumstances and possible use of foreign aid in swinging an election have never happened before. We are in uncharted waters. Like sailors in the aforementioned situation, all we can do is rely on what we know to be true.

Special counsels are much rarer than FBI investigations into presidents and they seem to set a livable standard for future enforcement. The idea of the future is important here. It’s not just that this president has a penchant for asking loyalty from career officials and potential a-political appointees that should bar him from appointing another justice. The crux of the issue is that any president under these circumstances cannot act in this matter without the appearance of bias. It’s high time we demand accountability from the people to whom we give power. Presidents under investigation for obstruction simply cannot be permitted to appoint Supreme Court justices.

The reality is, it doesn’t matter that Brett Kavanaugh was formally selected as the President’s nominee. He could have nominated Merrick Garland, and it would not change the fact that even considering a nominee from this president violates the very norms that uphold our conception of justice while he remains under investigation.

The changes necessary to right the course of our system are not easy but they are necessary if we are to live up to our constitutional charge of a government by the (living) people that comes together in search of a more perfect union. Until that day, we must answer the call of the moment by preserving the rule of the law and refusing to hear any nominee from the president until he has been cleared of obstruction of justice. Then we may truly come closer to living the ideals set forth for us without being shackled by the decisions of those looking to maintain power long after their death who were given those opportunities by chance. Every action has consequences and by finally addressing some of the structural inadequacies inherent in the judiciary, we can more easily address the constitutional questions of our time.

“O, yes,

I say it plain,

America never was America to me,

And yet I swear this oath –

America will be!”

Brendan Flynn is a native Nevadan and current expat studying law in the Midwest.