By John March
Several months ago, in this space, I argued that America should end lifetime appointments for federal judges. Each nomination to the Supreme Court now leads predictably to partisan warfare and the principal reason is clear: when a nominee can potentially serve on the court for as long as 30-40 years, too much is at stake for both sides not to fight tooth and nail.
Under the Constitution, federal judges retain their appointments “on good behavior,” which is to say, until death, retirement or impeachment makes way for their successor. By contrast, many businesses impose a mandatory retirement age, recognizing that new blood and fresh perspectives are vital to continued success. But not, alas, the federal courts, where some judges just go on and on. This is not always bad, of course, but we would not—and we do not—tolerate such unlimited tenure in our elected officials.
With apologies to Ruth Bader Ginsburg, whose legacy is indisputable, I believe America pays too great a price for a geriatric high court, subject neither to term limits nor a mandatory retirement age. As Norm Ornstein of the American Enterprise Institute has written:
“The policy future of the country depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society. We could have one one-term president shaping the Court for decades, and another two-term president having zero appointments. And we could end up with a Supreme Court dramatically out of step for decades with the larger shape of the society, and likely losing much of its prestige and sense of legitimacy as an impartial arbiter, creating in turn a serious crisis of confidence in the rule of law.”
Unless we believe that our country is incapable of finding and elevating the next Ginsburg (or, though it pains me to say it, the next Scalia), we must acknowledge that no jurist is truly indispensable. The risk is not that we will overlook or cut short the next Oliver Wendell Holmes, but rather that any 80-year-old member of the highest court will, almost single-handedly, set public policy for decades. Such a system, our present system, is fundamentally undemocratic. Term limits would change that.
When the Constitution was drafted, the prevailing view was that making federal judicial appointments subject only to “good behavior” (i.e., any conduct not giving rise to impeachment) would confer on federal judges an important degree of independence. They would be free, the argument went, from the hurly burly of politics, free from the temptation to favor secular interests. To say that it has not worked out that way is an understatement (see, for example, Bush v. Gore). Also, when the Constitution was drafted, the American lifespan was considerably shorter than today. For example, the average age of the signers of the Declaration of Independence was only 44. The idea of a Supreme Court judge still serving at age 85 would have struck the framers as fanciful. Yet while the average age of Americans has changed greatly, the practice of lifetime judicial appointments at the federal level has not changed at all.
But we may have reached a tipping point. With increasing frequency, we now see calls for change from both ends of the political spectrum. Reliably conservative thinkers, including David French and Steven Calabresi, have argued for single, 18-year appointments to the Supreme Court. On the other side, Yale law professor Stephen Carter has written in support of term limits, adding weight to the arguments of political scientist Norm Ornstein, writers Russell Berman and Ezra Klein, and the nonprofit Fix the Court, among others. Voters reluctant to support adding seats to the Supreme Court, as some liberals have advocated, may prove more open to the idea of term limits and/or a mandatory retirement age.
In short, it’s time to end the constant warfare over Supreme Court nominations, or at least to lower the temperature. When the left and the right agree, as they do increasingly on this issue, change becomes possible.