I have never been a fan of term limits. It seems to me that the best term limit is at the ballot box.
Even with gerrymandering, outside money and other political hi-jinks, the power still rests ultimately with the voters, and if they are too indifferent, uninformed, or foolish to vote out corrupt or ineffective officials, then I guess they get the leadership they richly deserve.
There may be a stronger argument to make for limits on chief executive positions like president or governor – these offices are extremely powerful and a bad or ineffective head of state could do a great deal of damage. Even so, I still think term limits should be up to the voters.
One place where I depart on this, however, is for judicial appointments. It seems like a no-brainer that lifetime appointments for judges are a bad idea.
Why? First, in the big picture, voters have no direct control over who sits on the U.S. Supreme Court or other federal institutions, so they have no way of directly limiting their power or longevity. So my theory about the best term limiter being the ballot box simply doesn’t apply the way it does with lawmakers or chief executives.
Second, just look at what has become of the nomination and confirmation process in recent decades. The frightful disaster that was the Kavanaugh confirmation process has been many years in the making, with both parties waging dispiriting and character-wrecking warfare over who sits on the high court.
Both sides know perfectly well that any person who sits on that court can stay as long as he or she likes, with death the only term limiter. A justice appointed at age 50 has a very good chance of being on the court at least three decades, sometimes more. The life expectancy for well-educated Americans, a group that definitely includes anyone likely to qualify for the supreme court, is north of 82, according to several recent studies, and has risen by about a decade over the last 50 years.
When the Constitution was written, overall life expectancy in the United States was under 40, and even for the prosperous white males that the Founding Fathers expected to sit on the Supreme Court, there were plenty of things that would kill a justice before he turned 70. A “lifetime appointment” for a 50-year-old justice in 1789 probably meant something more like a 10 or 15 year term than the 30 or 40 year one today.
This means the stakes of any given Supreme Court nomination have risen exponentially even in the last 50 years, far more so in the last two centuries.
Let’s dispense with the polite fiction that the Supreme Court is not a political body. While it doesn’t typically engage in the naked partisanship that you see in Congress, there is no question that Republicans (and Whigs and Federalists before them) picked justices that suited their political outlook, and Democrats picked justices to their tastes. The determining factor was political, no matter what the president and senators were claiming.
And the Supreme Court has always worked in political ways, even if not overtly partisan. Remember President-elect James Buchanan conspiring with Chief Justice Roger B. Taney to push through the horrendous Dred Scott decision in 1857, which explicitly stripped black people of citizenship, saying they were “so far inferior, that they had no rights which the white man was bound to respect.” Buchanan and Taney somehow convinced themselves that this decision would settle the nagging slavery question, but instead it may well have tipped the country into outright civil war.
In the 1930s, a conservative, Republican-heavy Supreme Court was active in striking down many of FDR’s New Deal initiatives, so much so that the frustrated president proposed adding extra judges (of his own choosing, naturally) to the traditionally nine-member court. Even his own party was appalled by his “court packing” scheme and he backed down, but it threw into sharp relief just how much of a political player the court was.
And more recently, the string of 5-4 decisions on politically charged cases in the last two decades, most prominently the 2000 decision that ended the election recount in Florida and put George W. Bush in the White House, have demonstrated that the Supreme Court is not just nine neutral, non-political umpires “calling balls and strikes,” as the most recent member to join the court has put it.
The latest confirmation battle is clinching proof that the stakes of the current system for nominating Supreme Court justices are simply too high. Rather than helping guard our democratic institutions, the court is becoming an accidental vehicle for warping and twisting them, inflaming partisan divisions and cutting off paths of reasonable compromise.
After recognizing that the Supreme Court is a political institution, therefore, it stands to reason that a limit on the term of a justice would lower the political stakes, and therefore lower the political temperature over a nomination.
Limiting a justice to, say, 20 years on the bench would guarantee a steady and predictable churn. Every future president would have a reasonable chance of making at least one nomination, or at least knowing whether he or she was likely to have such a chance. Neither party would be inherently advantaged or disadvantaged by such a system, since it is impossible to predict the political mood of the country decades in advance.
There are several organizations advocating for just such a change to the Constitution, including Fix the Court, which calls for an 18-year limit.
Whatever the number may be, with a term-limited court, it is far less likely that any one president could alter the shape of the court fundamentally in ways that would last for decades – sometimes at the cost of voters not yet born.