Appoint someone now. But not for life.
The time is ripe for a much needed and long overdue court reform. Let’s not have this chance pass us by.
On February 13, Antonin Scalia, one of the nine enrobed dispensers of justice tasked with interpreting and parsing the foundational words that bind the United States into a singular body politic, died. He would have been 80 in March. But, more pertinent to the essence of this essay, he was in the midst of his 30th year as an Associate Justice of the Supreme Court. That is a number that aggravates my egalitarian sensibilities. Let’s explore why.
In 1986, Justice Scalia swore his oath of office. Like the fictional Night’s Watch, he took up the black and he took it for life. Though in his case, it was less an act of tundric exile and more the pinnacle moment in a career devoted to legal scholarship, a reward for adhering to strictly conservative judicial principles from an equally conservative president. He was expected to adjudicate for a damn long time and to do it from a scrupulously selective perspective. This he did, to the admiration of some and the chagrin of others.
Scalia’s tenure, as long-lasting as it was, falls nearly a touchdown short of the record — William O. Douglas sat at his perch for 36 years. But this pair is not unique in their longevity. 13 other men saw at least 30 years elapse while taking their turns on the bench. That’s longer than the reign of most kings — both real or imagined by the maniacally-inspired Martin. And turning our gaze toward the current Court, we can spot, not far off in the horizon, four more justices liable to join their fossilized antecedents in the earning of their pearls.* A clear pattern thus emerges: for a not insignificant number of justices, placement on the Supreme Court is essentially a lifetime appointment. Bear in mind that Supreme Court justices — men and women who wield immense power — are not elected. Is this how a truly democratic society conducts itself? Delegating lifelong imperium to nine persons in a nation of 320 million? Like Patrick Henry before me, I smell a rat.
To be sure, it is good that our federal judiciary is not subject to direct elections. We ought not further politicize questions of constitutionality. But I repeat my refrain: 30 years is too long! I submit that it is anti-democratic to cede unchallengeable authority to appointed officials for more than a generation. Especially when we consider the ever-widening dominion of these particular officials. To wit, Court rulings of this millennium have proved consequential in nearly all aspects of American political, economic, and social life.
These objections based on principle are further reinforced by the practical pitfalls associated with a ceilingless tour of duty. The unrivalled power of judgments emanating from the marble halls of the Nine are a mouth-watering treat coveted by both Democratic and Republican ideologues, exposing the institutional controls of the Court’s composition to the polarization and gridlock presently rotting the other two branches of government. Though relatively safe from these dismal winds of change until now, with a fetid political atmosphere swirling overhead, the blight has at last arrived at the Judicial branch. The selection process for naming new justices is now subject to the small-minded intransigence characteristic of our age.
Elevation to the Supreme Court has traditionally proceeded like so. One of the Nine resigns or dies. The sitting president nominates a distinguished public servant who attended law school at Harvard or Yale.* The nominee appears before the Senate Judiciary Committee for a confirmation hearing, whereby twenty senators grill the aspirant on their judicial philosophy for 20-plus hours. Following the hearing, the committee votes on whether to recommend the nominee to the full Senate. If the vote is in the affirmative, the full Senate considers the potential justice, with a simple majority necessary for confirmation. While not without its warts, the process worked — under these rules, we were assured a fully stocked Judiciary (even as individual foodstuffs sat beyond their ideal shelf life). This basic, constitutionally-dictated function of government — the presidential appointment of Supreme Court justices with the advice and consent of the Senate — has fallen prey to our poisonous political climate. For upon the death of Justice Scalia, congressional Republicans announced their intention to forswear their constitutional duty and reject outright any nominee put forth by President Obama to fill the vacant seat. Their stated fear? The creation of a leftward-leaning Court that would likely last a generation.
The need to replace Scalia is real and urgent. The tack taken by the captains of the Senate is outrageous. Under these circumstances, then, exists the opportunity to effect a fundamental change to the nature of Supreme Court justiceship.
Without question, someone should be appointed by President Obama to succeed Justice Scalia. But this person should not sit behind the bench for life. Starting with this appointment, lifetime tenure for Supreme Court justices ought to be abolished. In its stead, I propose a single fifteen year term, with no possibility for renewal. By this reform, we both blunt the aristocratic nature of the current Court and prime our elected leaders for less contentious confirmation battles. If each nominee is assured no more than fifteen years as a justice, then each individual appointment would carry less weight — future members of the Nine would occupy their seats for less time than 62 — or 55% — of their predecessors. And each side would be guaranteed a pick to their liking in due time, as neither party has controlled the executive branch for fifteen consecutive years in recent memory.*
If the political will is there, if an ounce of boldness (as opposed to unrighteous indignation) is left in Washington, this could pass. But what would it take, legally speaking, to enact such a measure? That’s where things get tricky. The Constitution states in Article III, Section I that “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour”. This has been interpreted as implying justices may retain their seats as long as they wish — though they are subject to impeachment like other elected office-holders. In the history of the Court, though, none have been removed by this mechanism, assuring the independence of the Judiciary from the meddling of political enemies. Regardless, to answer our original question: a constitutional amendment would be required to formally do away with lifetime tenure for Supreme Court justices. This is unlikely to happen.
Ah, but I believe I have stumbled onto another, less formal tactic for achieving this desirous end. When it comes time for the Judiciary Committee’s next confirmation hearing, the nominee is asked to swear under oath that, if confirmed, he or she will serve on the Supreme Court for no longer than fifteen years. Flash forward fifteen years. If this justice refuses to surrender his or her seat, Congress could bring impeachment charges against them. Surely lying under oath before a congressional committee — committing perjury — would qualify as less than “good behaviour”, thus satisfying the constitutional standard for removing justices. By giving Congress this potential recourse for impeaching the wayward and the recalcitrant, a term limit would effectively be put in place for those who don the black.
It is often said that Justice is blind. Well, in the case of the our nation’s highest court, justice has at times been incapacitated by stroke, intermittently senile, and literally blind. This is inevitable when giving persons a job for life. But this state of affairs need not persist any longer. We have applied term limits to the presidency and taken pains to ensure a president incapable of leading is removed from the Oval Office. Why not take similar steps in regard to our justices? And if still not convinced, perhaps one final historical example will make my case: King George III, who our forefathers rose up against in revolution, reigned over the colonies for only sixteen years. And decades later, when he descended into madness, a regent was named and his powers stripped away.
* Justices Kennedy, Thomas, Roberts, and Kagan will reach the 30 year milestone in 2018, 2021, 2035, and 2040, respectively. None will be older than 81 at the time.
* It seems this is a prerequisite for joining the Court in our modern times. While Justice Ginsburg earned her degree from Columbia, she first enrolled at Harvard. The last justice who did not spend anytime studying at Yale or Harvard was Sandra Day O’Connor, appointed in 1981.
* FDR and Truman combined for 20 consecutive years of Democratic rule from 1933–1953. Since then, Reagan and Bush I came closest to the magic number of 15, combining for 12 straight years of GOP governance from 1981–1993.
