Rumors are swirling that
The mere idea that Kennedy’s seat could get filled by
To many liberals, Kennedy’s replacement with a strict originalist like Justice
Liberals aren’t the only ones who get anxious over Supreme Court appointments, of course. When it seemed
This level of speculation, fear and dramatic suspense over when any single public official retires is a sign that the stakes of Supreme Court appointments are simply too high. To lower the stakes – and attending dysfunction – of each court appointment, both parties would do well to consider a scheme put forward by two Northwestern University law professors.
In a 2006 paper for the Harvard Law Review, Steven Calabresi and James Lindgren proposed that Supreme Court justices should serve 18-year terms, with a new judge appointed every two years. Each president would effectively get to nominate two justices for every term in office, and the Senate would agree to promptly consider them on a regular schedule.
The sitting court would be composed of the nine most recent appointees. More senior judges would continue receiving full pay and would sit as judges on lower federal appellate courts or back on the Supreme Court to fill a vacancy or recusal. The plan has the advantage of potentially being achievable by statute, rather than requiring a constitutional amendment.
Of course, a justice might unexpectedly die, retire, resign or be impeached. But for the most part, Supreme Court appointments would become more quotidian, like other executive or judicial nominations. The public, the press and Congress would know what to expect and when to expect it.
With a new justice always around the corner and a built-in limit to the length of any one person's influence, the Senate could more easily accept an opposing president's nomination, breaking the go-nowhere tit-for-tat cycle of congressional partisanship that stalled the appointment of Garland.
Such a system would also eliminate the "tyranny of the young," whereby presidents seek to appoint the youngest possible justices in a calculated effort to further their legacies for the greatest number of decades. New voices and ideas could more easily populate the court, and brilliant, innovative judges wouldn't be sidestepped for being too old. The frequency of appointments might allow presidents to experiment a little, perhaps by appointing a trial judge or a politician. It might also encourage minority parties and interest groups to limit their cries of impending doom.
The Constitution's Article III has long been interpreted to grant judges life tenure. But the text actually has some leeway. It states that judges "shall hold their offices during good behaviour" and receive "a compensation, which shall not be diminished" while in office. The rest of the Supreme Court's structure, and what it means to "hold" the "office" of a Supreme Court justice, is left to Congress.
The benefits of life tenure are clear. By eliminating the ability of political actors to remove judges, the Constitution frees judges to make decisions based on reason and their honest understanding of law, rather than to protect their positions by pleasing a political patron.
But life expectancy today is a full 30 years greater than it was in 1789. In the country's first 200 years, the average Supreme Court justice served for 15 years; Kennedy is creeping up on 30. Gorsuch, fit and 49 years old, could serve for the next 35 years or more.
That's a very long time for an unelected official to exercise such vast public authority.
Ben Feuer is chairman of the California Appellate Law Group, an appellate law firm that practices in the U.S. Supreme Court.
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