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Justice, Till 18 Years Do Us Part

April 12, 2010

Recognizing that the Supreme Court is a political body, that its members are appointed with a great deal of consideration given to their political views, that their appointments become part of the political reality of the time of their nominations, the current convention of life tenure for justices unjustifiably distorts their relationship with our democracy and should be changed. A 18-year term would end or mitigate many of the current negative consequences of the current system while having few drawbacks.

The Constitution states that Justices “shall hold their Offices during good Behaviour” which has generally been interpreted as life tenure but the practical reality of life has changed markedly since the Constitution was written. Between 1821 and 1970, the average tenure of justices varied between 12 and 20 years. From 1970 to 2006, the average tenure was 26 years. Between 1994 and 2005, there were no appointments to the Supreme Court.

The unpredictable nature of Supreme Court vacancies makes the resulting appointment process more partisan and more disruptive to the political process. Because Congress and the President do not know the next time a position will open and because any confirmed justice can be expected to serve a quarter century, the consequences of any given nomination cannot be reliably ascertained and, as a result, the justifiable political capital expended on any given nomination is also without ascertainable limits. That is not to say that political capital shouldn’t be spent on Supreme Court nominations – it should – but the current system exacerbates the polarization of our political environment, encouraging senators and other politicians to liken the nomination of any given candidate as the penultimate step to a theocratic or Soviet dictatorship (take your pick). By making nominations predictable and relatively common, 18-year terms would eliminate the shock that accompanies the current nomination process. If the political parties knew that they would also be able to appoint justices the next time they controlled the presidency, and that they could expect their opposition to respond in kind to whatever obstructive tactics they used, the parties would be much more reticent to wage the all-out battles that are now the norm.

Life tenure also encourages the nomination of younger candidates and discourages the selection of candidates without a perfect bill of health. Those two factors have nothing to do with how well qualified any candidate is to serve on the Court and their importance in nominations is therefore either neutral or negative (except perhaps in the unlikely case deference to age or experience would have resulted in the selection of an older but less able justice). An 18-year term would reduce the incentive to nominate younger candidates and would also avoid the continued service of a justice whose health has deteriorated.

A limited term would also eliminate the potential for justices to game the nomination system, as some Justices retire only when they know the current president will appoint a replacement acceptable to them. I’d assert that it is not coincidence that Justice Souter, whose dislike of Washington, DC was widely known, especially after the Gore v. Bush ruling, waited to retire until a Democrat was President. This is, of course, to be expected given the political nature of the Court. However, it has the effect of removing the Court further from the Democratic process and creates the potential monopoly of seats by one party. In fact, until the nominations of Justices Breyer and Ginsburg, 8 out of 9 justices had been appointed by Republicans, a result of that party’s success in recent presidential contests but one that reflects President Carter’s lack of opportunity to

The regular and regimented appointment of Supreme Court Justices will bring them closer to the citizenry, in a good way. The Supreme Court has a significant effect on our daily lives. They shouldn’t be a mythical brotherhood of oracles. They should be our Justices.

In the course of writing this post, I’ve read more widely on the subject and encountered more convincing arguments in favor of life tenure than the ones I was previously aware of. Since I’ve been writing about this for a few days and would rather be done with it than incorporate those valid criticisms, I’ll link to this SCOTUS Blog post which summarizes many of those points.

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