THE DEAL that pulled the Senate back from the brink of a shootout over judicial nominations this week didn't really settle anything. Democrats retain the right to filibuster future nominees "under extraordinary circumstances" -- a phrase it is left to them to define. Republicans can still go "nuclear" -- change the Senate rules to block a filibuster of judicial nominations -- if they decide the Democrats are acting in "bad faith." Odds are the deal will collapse as soon as the next vacancy opens up on the Supreme Court. Assuming President Bush sends up a nominee whose ideological profile matches those of the sitting justices he says are his favorites -- conservatives Antonin Scalia and Clarence Thomas -- Democrats and Republicans will square off and the Senate will be back at the OK Corral.
And, really, how could it be otherwise? The Supreme Court has become an immensely powerful institution, one that sets national policy on a host of contentious issues from abortion to race to property rights. Is prayer permissible at a high school commencement? The Supreme Court decides. Can Congress ban political ads that mention candidates by name? Ask the Supreme Court. May a state execute a 17-year-old murderer? Prohibit flag-burning? Authorize medical marijuana? It's up to the Supreme Court.
Alexander Hamilton described the judiciary as the "least dangerous" branch of government, since it had no authority to appropriate funds and no way to enforce its decisions. But federal courts today exercise powers the Framers never gave them. They overturn laws passed by legislators, constitutionalize rights not enumerated in the Constitution, even determine the outcome of a presidential election. And if that doesn't make them potent enough, federal judges hold their jobs for life. They are unelected, unaccountable -- and enormously influential. Is it any wonder that judicial appointments are fought over so fiercely? So much is riding on the outcome.
Ultimately, the only way to reduce the acrimony is to make the judges less powerful. That could be accomplished by eliminating judicial review or enacting limits on the courts' jurisdiction. But there is an easier and more realistic approach: Do away with lifetime tenure.
When the Constitution's authors established a judiciary with unlimited terms, adult life expectancy in the United States was around 40 -- half of what it is today. Between 1789 and 1970, Supreme Court justices served an average of just over 15 years and retired at 65 1/2. Since 1970, justices have stayed on the court for an average of 25.5 years, and their age at retirement has climbed to nearly 79. That can hardly be what the Framers envisioned.
No president can hold power for more than eight years, but the most junior member of the current court -- Stephen Breyer -- has already been there for 11 years. Two others, John Paul Stevens and Chief Justice William Rehnquist, have been on the court for more than 30 years.
For at least four reasons, this is not a good thing.
First and most obviously, lifetime tenure vastly increases the stakes in filling each Supreme Court (and Court of Appeals) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing weren't likely to persist for decades. Second, high court justices are tempted by the current arrangement to time their resignations for political reasons. Liberal judges have an incentive to stay on the bench until Democrats control the White House and/or the Senate, while conservatives wait until Republicans are in charge.
Third, as law professors Akhil Reed Amar of Yale and Steven Calabresi of Northwestern wrote in 2002, "life tenure encourages presidents to nominate young candidates with minimal paper trails and maximal potential to shape the future" -- by passing up more experienced individuals whose resumes might trigger an ideological assault. And fourth, with justices staying on the court longer than ever, the judiciary is deprived of regular infusions of new blood. Result: a decrease in intellectual vigor and awareness of contemporary culture.
The argument in favor of life tenure for federal judges is that it strengthens them against political attack and outside influence, making it easier to render unpopular decisions without fear. "The Constitution protects judicial independence not to benefit judges," Rehnquist wrote in his 2004 year-end report on the federal judiciary, "but to promote the rule of law: judges are expected to administer the law fairly, without regard to public reaction."
But life tenure can be replaced with fixed judicial terms without weakening the autonomy of the federal judiciary. No one questions the independence of the governors of the Federal Reserve, who like judges are appointed by the president and confirmed by the Senate but who are limited to 14-year terms. Likewise the comptroller general -- the federal "watchdog" -- whose term lasts 15 years.
Why not a similar arrangement for high-ranking federal judges? Amending the Constitution is never easy, but the situation cries out for reform. Senators shouldn't have to threaten each other with "nuclear" attack in order to bring judicial nominees to a vote. If there were less at stake -- if Supreme Court and appeals court judges no longer served for life -- they would no longer feel the need to do so.
(Jeff Jacoby is a columnist for The Boston Globe.)