Posted by: Jeff | May 12, 2010

Term Limits for SCOTUS

I’d like to associate myself with Ross Douthat and Matthew Yglesias, and argue that a big part of what’s wrong with the Supreme Court nomination process – and with our political system’s relation to the Supreme Court more broadly – is the fact that judges are appointed for life.

For starters, as Yglesias notes, this leads to all sorts of random weirdness in the nomination process, such as the search for the one perfect candidate who is both extremely qualified and unusually young. (And the determination of the opposition to then block precisely such a candidate.) At the opposite end of the life spectrum, you get judges who really should be stepping down due to age, but who insist on sticking it out until they can retire while an ideologically amicable president is in the White House to appoint their successor.

More deeply, lifetime appointments make this an incredibly high-stakes game, and that, in turn, encourages minimal risk-taking. Which I imagine goes a long way towards explaining the substanceless and useless nature of the Senate hearings and the nomination process as a whole; something Joe and I have complained about before. If it was known ahead of time that the nominee’s time on the bench would be limited, and that everyone wasn’t “playing for keeps” as they are in the current process, that might encourage Senators and nominees alike to be a lot more honest and forthright with each other – as opposed to engaging in the objective-and-non-ideological kabuki dance we’re currently being treated to.

And, frankly, the justices of the Supreme Court do wield a tremendous amount of power, for which lifetime appointments render them largely unaccountable. As self-serving as I find most conservative critiques of the Court, there is something creepily undemocratic and philosopher-king-ish about the whole arrangement.

As to the practical details, I’m not sure strict term limits would be necessary. I have no problem with a justice potentially serving for life, but their appointment should come up for renewal at regular intervals; simply require the president to renominate them and the Senate to reconfirm them when the time comes. You’d also want those intervals to be at least a decade, so that no one would have any idea which party would be in the White House or in control of the legislature when reappointment came up. An odd number of years for terms, say 11 or 13, might also be preferable, in order to avoid having the renominations dovetail with election years, and thus become even more politicized.

Constitutional amendments are generally very hard to get, but this strikes me as one the American public would get behind, and that your average politician would feel safe supporting. As such, it seems do-able.


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