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Supreme Limits

Lifetime Appointments: Are High-Court Justices Staying on the Bench Too Long?
September 11, 2005 |
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The U.S. Senate will soon begin confirmation hearings for Supreme Court nominee John Roberts. With partisan groups on both sides gearing up for a fight, the process promises to be as contentious as past confirmations.

One can't help but wonder if we couldn't avoid much of the partisan mud wrestling about Supreme Court nominees if there were term limits on the high court. Perhaps more than any single factor, the "until death do we part" constitutional requirement has been responsible for bruising confirmation battles.

At age 50, Roberts could serve for decades on the court if he's confirmed.

Other democracies employ judicial term limits, so this is not an unusual practice. High court justices in Germany are limited to a 12-year term and in France, Italy and Spain, the limit is nine years.

There's American precedent for judicial term limits, with judges on the U.S. Court of Federal Claims limited to 15-year terms. Also, members of the Federal Reserve Board, shielded from politics since they oversee the nation's economy, serve 14-year terms, with the chairman appointed to a four-year term.

Another possibility is a mandatory retirement age. Australia and Israel retire their judges at age 70 and in Canada judges are retired at age 75. A few U.S. states have mandatory retirement ages for judges. In Minnesota and Missouri, it's age 70. If this standard were applied to the current Supreme Court, two justices would have retired already, with two more stepping down next year.

Interestingly, for most of American history, Supreme Court justices averaged about 13 years in service because appointees to the court used to be much older. But according to Northwestern University law professors Steven Calabresi and James Lindgren, the average term for Supreme Court justices doubled to about 26 years between 1989 and 2000.

The late Chief Justice William Rehnquist served on the high court for 33 years. John Paul Stevens, the oldest member of the court at 85, has served 29 years.

Traditionally, appointees were distinguished elders whose appointment was considered a capstone to a career in public service. For example, William Howard Taft, after serving as president and a cabinet secretary, was appointed to be chief justice at the age of 64. Now, presidents look for some young buck with no paper trail who can be installed for decades.

Beyond judicial term limits and a mandatory retirement age, it's also worth considering multiple appointing authorities. In France and Germany, no single person or institution has a monopoly on appointments to the constitutional court. In Spain, four judges are appointed by the upper house, four by the lower house, two by the government and two by a judges council.

Bipartisan appointments also hold promise. The Senate might review only nominees proposed through a bipartisan selection procedure. As a step in that direction, one option is to require a confirmation vote of 60 senators instead of a simple majority. Since no one party usually would have that many votes, it would nudge the parties toward bipartisan consensus.

According to Professor Matthew Shugart at the University of California, San Diego, for the past three election cycles, more than 200 million votes were cast in races that elected the nation's 100 senators.

Republicans won 46.8 percent of the votes in these elections--but the Democrats won more votes, 48.4 percent. Yet the GOP currently holds a lopsided 55-to-44-seat majority. So the minority party holds a majority of Senate seats.

A body as unrepresentative as the U.S. Senate should not confirm lifetime appointments, especially by simple majority vote. Defenders of the status quo undoubtedly will view any tampering as an assault on judicial independence. But the bitter partisanship of the current process has deeply undercut all notions of justice and fairness.

Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing/confirming authorities would help to decrease politicization, create a modest amount of turnover and ensure that one party doesn't monopolize the process.

In these times of extreme partisan polarization, that would be good for America.