THE FRAMERS of the US Constitution were a brilliant bunch, but even they blundered now and then. One of their blunders was life tenure for Supreme Court justices, a constitutional flaw for which Americans are paying a price to this day.
The political mud fight that erupted within hours of Antonin Scalia's death was as predictable as it was disgraceful. When President Obama announced his intention to nominate a new justice promptly, Senate Republicans indignantly howled that an election-year confirmation was out of the question, and that any nomination should wait until voters could choose a new president. Senate Democrats howled just as indignantly that Scalia's seat must not be left vacant, and that it would be scandalous for the Senate not to hold hearings and a vote on the president's nominee.
That each side had made the opposite argument when the political lineup was reversed — Republican president, Democratic Senate — inhibited the latest round of self-righteous posturing not in the least. Procedural consistency is the last thing Washington cares about when there is a vacancy on the high court. All that matters are the political stakes.
And when it comes to a seat on the Supreme Court, those stakes — thanks in large measure to life tenure — are enormous.
In Federalist No. 78, Alexander Hamilton famously described the judiciary as the "least dangerous" branch of government. Since the Constitution invested the courts with neither power of the purse nor control of the military, he argued, the judiciary would always have less influence than the two political branches. It was to counteract this inherent weakness that the Framers endowed federal judges with life tenure. Permanent appointments, the thinking went, would ensure independent judges, not cowed by partisan attacks or by public reaction to their decisions.
But the Framers' basic assumption was wrong. The Supreme Court isn't weak. The justices may not appropriate funds or command armies, but very early on they assumed the authority to say definitively what the Constitution requires and forbids. The Supreme Court has become the most dangerous branch, with the ability to shape national policy and priorities on almost any issue it takes up. And these days there is virtually no topic, however controversial — Obamacare, same-sex marriage, lethal injections, campaign finance, racial preferences — that doesn't end up in court.
Life tenure proved vastly more potent than Hamilton and his colleagues could have imagined, and not only because the Supreme Court involves itself in so many more areas of American life than it used to. Justices also live longer. When the Constitution was written, the life expectancy of the average American was less than half of what it is today. "Today the average justice who is appointed to the court in his early 50s can expect to sit on the court for nearly three decades," legal scholars Steven Calabresi and James Lindgren wrote in a 2006 law review article. Modern justices "enjoy a potential tenure that is 50 percent longer than that of their typical 18th- and 19th-century predecessors."
No wonder judicial confirmation battles have grown so savage. Whoever ends up taking Scalia's seat on the court will end up with more political clout than any of the senators voting on his or her nomination — and is likely to be wielding that clout after most of those senators have retired. Of course the parties go to Defcon 1 when a rare and unpredictable Supreme Court vacancy appears. The consequences are huge, and it may be another 30 years before the seat comes vacant again.
It doesn't have to be like this. A remedy is available. All we have to do is fix the Framers' blunder: Scrap life tenure, and switch to term limits for Supreme Court justices.
As life expectancy has risen, so has the age of the average Supreme Court justice. No longer is it unusual for justices — unelected and unaccountable — to stay on the court for 30 years.
Judicial nominations will always involve political give-and-take. This one reform, however, would drain away the partisan ferocity that now makes the confirmation process so excruciating. The idea is far from new. Thomas Jefferson, originally a supporter of lifetime appointments for judges, came to regard them as dangerous and undemocratic. More recently, scholars and analysts across the ideological spectrum have endorsed term limits for the Supreme Court. One appealing proposal would switch to a system of staggered 18-year terms, with a new justice being appointed in the first and third year of every presidential quadrennium. That would transform Supreme Court vacancies from rare flukes to regular events. Every president would have the opportunity to name at least two jurists to the highest court in the land. The political composition of the court would reflect the political orientation of the White House and the Senate more faithfully than it does now. When everyone knows that the next SCOTUS vacancy is never more than two years away, Supreme Court confirmations will no longer resemble Armageddon.
It isn't easy to amend the Constitution, and any changeover to term limits would require careful transition rules. But there is reason to think the American public might welcome this means of de-escalating the nastiness of Supreme Court confirmations. When a Reuters poll last summer asked respondents whether they favor replacing the justices' lifetime appointments with fixed terms, a bipartisan majority — 66 percent — opted for term limits. Only 17 percent supported life tenure. A 2012 CBS News poll reached a similar finding: 60 percent of American voters oppose lifetime appointments.
Life tenure for Supreme Court justices was one of the Framers' screw-ups. A rethink is long overdue. In a government of the people, no one should be entrusted with power for life. Especially when that power is immense, and lifespans are longer than ever.
(Jeff Jacoby is a columnist for The Boston Globe).
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