Continuing a theme of late here at OTB (see here and here), the Kagan discussion reminds me of another reform to the US constitution that I would love to see: changing the term of office of Justices of the Supreme Court. Specifically I would eliminate lifetime tenure and instead institute a single term that would be somewhere in the 10-14 year range. I have not thought through the exact implications of a specific term length, but know that it should be longer than 8 years (i.e., the length or two presidential terms) and that the terms ought to be staggered. The model used to appoint the Board of Governors of the Federal Reserve (14 year terms) might work.
There are several reasons to do this.
- Politics. Since the stakes are so high for a lifetime appointment, the vitriol in the Senate (and in the public write large) can reach a fever pitch. Now, I understand that no matter what the term lengths might be that the politics surrounding a SCOTUS nomination would be significant, but the stakes would be different for a 10 or 14 year nominee than for one that might serve 30+ years. For example, the retiring Justice, John Paul Stevens, was appointed to the Court three and a half decades ago. That’s a long time to give one individual that much power and influence and political opponents have to take these time horizons into account.
- The Age Thing. Following on from the previous point, the incentives are such that presidents have increasingly sought out younger nominees in the hopes of leaving their marks on the court for decades and decades to come. Again, that is a lot of power to give a given president. This also means that highly qualified candidates in their 60s are no longer considered. At a minimum, a fixed term would broaden the pool of acceptable nominees.
- Quality. Not only does the current situation incentivize picking younger candidates, it also incentivizes picking candidates without paper trails. Because the stakes are so high, presidents are incentivized to pick non-controversial nominees, which means not just not picking obvious advocates, but also shying away from candidates that might have rich intellectual/academic records. It seems to me that this is a net negative for the country. Now, this may still be the case with a shorter term, because the stakes would remain quite high for a SCOTUS nominee. Still, it is a very different thing to appoint someone for a decade vice three and a half plus.
- Power. Does it really make sense to empower an individual in one of nine key political positions for that much time?
UPDATE (James Joyner): Matt Yglesias agrees and adds another pretty good reason:
The most important consideration for the future of American law is not whether Justice Kagan turns out to be more like Breyer or more like Stevens, it’s whether the seventy-four year-old Antonin Scalia can stay in good health until there’s a Republican in the White House. That’s a weird way to run a legal system, especially because the extraordinary difficulty of amending the constitution gives the Supreme Court power that’s very hard to check. What’s more, we might plausibly see in the near future the situation in which an elderly justice begins to suffer from very serious medical problems but refuses to step down because he or she finds the incumbent president ideologically uncongenial.
