Life Tenure for Judges?
Ronald Brownstein has a piece
in the Los Angeles Times
today noting that "[some] prominent legal thinkers from left and right" want to end life tenure for Supreme Court justices. Each time I hear this suggestion, it sounds an awful lot like a solution in dire search of an actual problem, but since it keeps popping up, let's take a look:
Fewer vacancies mean more conflict over those that occur because neither side can be certain when it will receive another chance to change the court.
Longer tenure also raises the stakes in each confirmation by multiplying the effect of each nominee. The common assumption during the recent confirmation debate over new Chief Justice John G. Roberts Jr. was that he would serve at least 30 years.
Kevin Drum says
the "benefits almost certainly outweigh the drawbacks," but I'm not so sure, although admittedly it's all a bunch of guesswork trying to predict what
would happen. The way I see it, giving Supreme Court justices, say, fixed 18 year terms (which would mean that each president is guaranteed two nominees per four-year term) would lead to a lot more instability in law, as a two-term president could completely remake the Court. Moreover, since the justices would be serving for a shorter period of time, the Senate would have less incentive to oppose overly-radical nominees, meaning that we'd potentially see greater ideological polarization, and hence greater swings left and right. (There would also be the sense that the president "earned" his two picks by winning his/her election, and thus should get greater deference... basically, I see a lot less "advise and consent" under this system.) Obviously I'd be thrilled if the Court swung somewhere to the left of Earl Warren, but preferences aside, continual instability of this sort doesn't really benefit anyone.
Is it "fairer" to give each president two guaranteed picks to the Court? Maybe, but then you start getting into problems like the fact that people vote for president for lots of reasons, often with the Supreme Court far from mind. Now perhaps if every president was guaranteed two picks, each presidential election would become "about" those two potential nominees to a much greater extent. Good or bad? I don't know. It might lead to a greater degree of cronyism, and could lead to those two judicial nominees showing undue deference to the president who appointed them (since their fortunes were more directly tied to the president's). Now I'm not absolutely convinced that the Supreme Court should be "insulated" from the democratic process, as it currently is, but some of this makes me nervous.
Perhaps even more seriously, I'm not thrilled with the idea of having a bunch of justices who have to worry about what they'll do after
they step down from the Court. The revolving door between Congress and K Street—where legislators retire and pick up some plum lobbying job—has produced more corruption and impropriety than is really healthy among the legislature, and I there's no reason to believe that a high court operating in a similar manner would avoid producing its share of Billy Tauzins
Now maybe we could find clever ways to solve these problems, and others that might arise, and perhaps there wouldn't be any
problems, but that leads us back to the deeper issue here: Why bother? Ultimately, if we wanted to end life tenure on the Supreme Court, it would have to be done with a constitutional amendment. If the experiment goes badly, it's unlikely that we can have a do-over, or constantly tweak the rules. Which brings us back to the question: Why
are we itching to muck up the current rules in the first place? Granted, there might be a few problems with the existing system—perhaps life tenure can lead to the odd senile Justice sitting on the Court—but just because the horse has a few fleas is no reason to shoot it, I think.