Wednesday, July 8, 2009

A Possible Fix for Supreme Court Nomination Fights

Sonia Sotomayor’s confirmation hearings are set to begin next week. In the past few years, these hearings have become quite contentious, as evidenced in the cases of Samuel Alito, Clarence Thomas, and Robert Bork. Conservatives are contemplating whether they want to make life difficult for Sotomayor (even if they don’t have the votes to ultimately block her nomination).

I wonder if applying term limits to justices couldn’t help matters. Every justice could be limited to 15 years on the high court. That would mean more vacancies on a regular basis. And no justice would be able to serve for 40 years or more. Taken together, this could mean that the stakes of each potential confirmation go down. On the other hand, the fact that there are more frequent confirmation hearings could make the composition of the Supreme Court a bigger issue which could cause more fights over justices. Both scenarios are possible, but it is hard to see how fights over justices would be even more contentious than they are now.

Having a confirmation process with lower stakes could make it less likely for Presidents to feel they need to nominate justices without a paper trail to get confirmed. The fact that a justice can only serve for 15 years could make them more willing to consider older justices as well; in some cases, a man who’s 60 might be better for the job than a man who’s in his late 40s.

There are other potential benefits as well. First it’s less likely that there would be infirm or incapacitated justices on the court. They would have to retire before they got old enough to have such recurring health problems. Under status quo, the only way to get justices with diminished capacities off the court is through an impeachment proceeding. I don’t remember the last time a justice was impeached. Do you?

Second, it reduces the overall power that an individual justice can have. Justices are currently appointed for life, and aren’t accountable to voters. An influential chief justice who stays on the court for 40 years probably has more power than a given President or Speaker of the House. In exchange for not having to face voters, it seems fair to limit the amount of time a justice holds his power.

Third, it would make sure that modern understandings of the constitution have voice on the court. Right now, one President could have the chance to appoint say five justices to the Supreme Court. Those justices could serve for 40 years. The problem is, they might have an outdated view of the constitution. For example, imagine if justices appointed in the 1890s heard cases on New Deal legislation. They likely would have struck the legislation down as unconstitutional because they had an understanding of the constitution from the 1890s. Or imagine if justices appointed in the 1840s by John Tyler were hearing cases on reconstruction in the 1870s. Would they have upheld rights for former slaves?

Granted, many justices’ view of the constitution evolves over time. But surely, many justices change very little. Term limits would solve for that.

I’m not ready to call a constitutional constitution for a term limit amendment just yet. But I think it’s an interesting idea worth considering.

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