Wednesday, April 13, 2011

Just a Thought . . . A Term Limit for U.S. Supreme Court Justices

In April 2010, President Obama had a Supreme Court vacancy to fill and former President Clinton was asked whether his wife was a candidate for that position. His response was that he and Mrs. Clinton were too old for nomination and suggested that President Obama “appoint someone 10, 15 years younger.” The reason the Clintons were too old? Lifetime tenure for Supreme Court Justices.

The United States Constitution provides that Justices “shall hold their offices during good behavior.” This provision has long been interpreted to mean that a Supreme Court appointment is for life. I would suspect that most people appreciate that this provision was part of an effort to insulate the Court from political considerations. However, in modern times, this lifetime tenure has become a significant problem. Lifetime tenure for Supreme Court Justices probably made sense in the 1780s when the Constitution was enacted since the average American’s life expectancy was about 35 years. Obviously that is no longer the case as the average life expectancy for an American has more than doubled and is now greater than 77 years. So, what was a reasonable provision when enacted, is no longer reasonable.

The idea that a former president aged 63 and a former senator and secretary of state, aged 62, were not candidates for the Supreme Court because they were “too old” is crazy. While no one would ever suggest that someone 62 or 63 were too old to be president, an exponentially more demanding and pressure filled job, somehow that age is too old for someone to sit on their ass all day and render legal opinions? That doesn’t even take into account all the time the Court is not in session. Had this thinking applied to how we select presidents, our Country would have been deprived of one of our greatest presidents, Ronald Reagan, who first took office one month before his 70th birthday.

Lifetime tenure on the Supreme Court has led to a perversion in the nomination process in that our country’s most experienced legal minds are effectively ineligible to serve on the Supreme Court because the sitting president, regardless of party, wants the potential justice to serve for 40 or 50 years. The last Supreme Court Justice to retire, John Paul Stevens, only retired at age 89 so that President Obama could appoint a similar liberal Justice. It is questionable whether President Obama would select a John Paul Stevens today because he was 54 when nominated in 1975 - and according to Bill Clinton, 54 is too old. Don’t feel too bad for Justice Stevens, he still served for 35 years, or about the equivalent of 9 presidential terms.

There should be bipartisan support to correct this insanity and still encourage political independence on the Court. My recommendation would be to amend the constitution to provide that Justices are appointed to one 15 year term. By limiting Justices to one term, the goal of political independence would be preserved and it is hard to believe that anyone could argue in good faith that 15 years on the Court is too short of a term. In addition, since our life expectancy increases for every year we live, the life expectancy of a 68 year old male is 15 years. Therefore, in the future, if the best candidate for the Court were 63 years old, the best person could be nominated to the Court with the reasonable expectation that the person would complete the term and we would move beyond the myth that every time a forty something year old is nominated for the Supreme Court that this person truly is the "best" candidate for the Court.

1 comment:

  1. Great idea! Also, instead of the clumsy vetting process, why don't we select justices in a more modern way, like having the selection done live on television, with the public calling into a toll-free line to vote? Simon Cowell could host! Just a thought...