The Time Has Come to Put a Limit on Supreme Court Tenure

The nomination of Sonia Sotomayor for the Supreme Court is on course for a strong confirmation vote on the Senate floor. But the 13-6 vote in the Judiciary Committee, with all Republicans save Lindsey Graham (S.C.) voting against her, made me reflect again on the politics of confirmation in light of our permanent campaign/polarized partisan politics environment--and on the need to rethink one of the fundamentals in our Constitution: the equivalent of lifetime tenure for federal judges.

The early negative reaction to the Sotomayor nomination by many Republicans may have been driven in part by her "wise Latina" comment or by her vote on the New Haven firefighter case--but it was also driven by the now-common reflexive partisan response to a pivotal judicial nomination by a president of the other party--"If he is for this person, we are against this person."

Objectively, from the standpoint of conservatives, Sotomayor is as good a nominee as they could ever get from a Democratic president. Overall, across hundreds and hundreds of decisions, she has been careful and narrow in her approach to judging, tough on crime and criminals, and not hostile to business. In those areas, she might well be more conservative than David Souter, the justice she is replacing. She has shown no signs of being a highly activist or ideological judge. She is smart and diligent.

The need to oppose nowadays overwhelms any impulse to step back and make different, and better, decisions.

But the need to oppose nowadays overwhelms any impulse to step back and make different, and better, decisions. The goal is just as much to set back the president as it is to do anything else, and that can end up being counterproductive. I believe that it was the comparable impulse among Democrats that caused them to oppose Miguel Estrada when he was nominated by President George W. Bush to the D.C. Circuit Court of Appeals. They saw Estrada as a potential Bush Supreme Court pick down the road--on this, they were accurate--and wanted to set the president back (and also keep him from having the first Hispanic Supreme Court nominee.)

Estrada, no question, was a conservative. He was also brilliant and accomplished, and not a knee-jerk ideologue. His nomination was thwarted, and he was not available for Bush to choose when he had two openings for the Supreme Court. So Bush picked John Roberts and Samuel Alito, both of whom have proved to be conservative judicial activists. My guess is that Estrada would be less activist than either of them, certainly than Alito, and over time might well have moved to form a new center on the court, instead of shoring up the bedrock right.

Of course, some of the votes cast against Sotomayor are not simply the knee-jerk reaction against a Democratic president. Some are heartfelt decisions made after a careful search of the record and consideration of her testimony in front of the Judiciary Committee. Others, including some cast by conservative Senators, are protection against a future primary challenge from the right. But whatever the motives, the Republican opposition to Sotomayor will, I believe, prove damaging to the GOP. It will come across to Hispanic voters as more evidence of hostility toward them by the Republican Party.

The process we have seen evolve on Supreme Court nominations--reflecting as it does a combination of our broader dysfunctional politics and the high stakes involved in a high court that increasingly makes key policy decisions, acts with abandon to overturn Congressional acts and has members who have huge power for decades after their patrons leave office--needs rethinking. It is time again for serious consideration of a constitutional amendment to change Supreme Court terms to 18 years.

Lifetime tenure--actually, it is so long as judges exhibit "good behavior"--may have made sense in the 18th and 19th centuries. It insulated judges from pressure by Congress or the president and was a bulwark against despotism. It also was viewed by Alexander Hamilton and other advocates as a major financial incentive to attract the best people to the judiciary.

Lifetime tenure nowadays narrows the range of people whom presidents consider for the Supreme Court. No president wants to pick someone in their 60s, say, when a younger nominee can continue the president’s legacy (and policy objectives) for decades more. And today, there is no financial incentive for a lawyer to accept a lifetime of a salary barely more than that of a 25-year-old second-year associate in a major law firm.

Moreover, lifetime appointments seriously skew the political balance on the Supreme Court for accidental or actuarial reasons. Some presidents have the luck of the draw and can nominate three or more justices; others get washed out entirely.

When I first wrote about limiting court terms, I suggested 15 years, using as the best example the appointment of a comptroller general of the United States to a single, 15-year term. But I thought better of it. The most sensible thing to do is have a single 18-year term, beginning with the next vacancy after the amendment to the Constitution is enacted. That way, each president, looking ahead decades, will get two opportunities to fill court seats. Presidents can safely pick from a wider range of individuals, including many in their late 50s and 60s, knowing with today’s life expectancy that the odds are very high that they will easily fill their terms. The temperature will come down a bit on the political stakes in nominations.

How about a hearing on this?

Norman J. Ornstein is a resident scholar at AEI.

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