James Tisch END SUPREME COURT LOTTO
Do we want any president to have the power to shape the nation for 30 years or more?
The name of the game is Supreme Court Lotto. Under our system, dumb luck dictates whether a president gets none, one, two, three or more Supreme Court seats to fill while in office. The game has again come into sharp focus with Judge Neil Gorsuch's confirmation hearings.
It’s a good time to ask: Do we really want to keep playing this game?
Do we want any president — who serves at most eight years in office — to have the power to shape the court and therefore the country for 30 years or more? Because that’s where we’re headed, and the implications are troubling.
Half the justices on today’s court have already served more than 20 years, with Anthony Kennedy pacing the group at 29 years of service.
With life expectancy rising, it isn’t hard to imagine Gorsuch — who is just 49 — serving on the Supreme Court well into the middle of this century. This is a development our nation’s Founders simply didn’t foresee when they provided lifetime appointments for the Supreme Court. Lifetime appointments probably didn’t seem like much of an issue when the average retirement age was 60, as was the case with the first 10 justices.
LIMIT TENURES
Over the years, many court watchers have called for limiting tenures, sometimes focusing on the need to ensure that justices can retain the mental acuity to do the job.
Lately, lifetime appointments for justices are distorting our democracy in troubling ways that go well beyond the fitness of any single justice. With Democrats and Republicans increasingly treating every new Supreme Court opening as a titanic, life-or-death struggle, the nomination process is starting to crowd out other essential national priorities.
As the Gorsuch nomination process continues toward a contentious and polarizing filibuster, political infighting has the potential to poison the well for any bipartisan agreement in Congress on other issues such as infrastructure investment and tax, immigration and health care reform.
This is no way to run the greatest democracy in the world.
It’s time to end Supreme Court Lotto with a simple idea that has been discussed for years but now needs to be acted on: Justices should be limited to one 18-year term. The terms would be staggered so that every two years, in June of the president’s first and third year in office, a justice’s term would end, and the president would appoint — subject to Senate ratification — a new justice. After 18 years, the ninemember Supreme Court would turn over entirely.
According to the noted Supreme Court expert Lucas Powe, “Eighteen years is long enough to do the job and then do it well and to guarantee independence from the elected branch, while short enough to avoid the unseemly problems that life tenure creates.”
AMEND THE CONSTITUTION
Of course, this change wouldn’t be easy. Ending lifetime appointments for the Supreme Court would require a new constitutional amendment, and it has been 25 years since the most recent constitutional amendment was ratified.
The new amendment would include transition rules and direction on the filling of vacant seats to move smoothly from our system of lifetime appointments to this new 18-year term structure. Once passed and fully implemented, the game of Supreme Court Lotto would be gone forever. Presidents would get to make two Supreme Court selections in each four-year term, providing an incentive to appoint the very best justices in the prime of their careers without consideration of age.
And by regularizing the nominating process, much of the political hyperfocus on Supreme Court appointments will be dissipated.
If leaders in Congress embrace this idea, they’ll find that the American people are behind them. Recent polls sponsored by
CBS News, Harris and Reuters- Ipsos, just to name a few, have found 60%-70% support for ending lifetime appointments to the Supreme Court.
No less a figure than Chief Justice John Roberts has supported 15-year terms for all federal judges, writing that it “would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence (and) also provide a more regular and greater degree of turnover among the judges.”
A constitutional amendment might seem like a radical solution, but our nomination system is on the verge of a breakdown. Last year, Senate Republicans refused to even have a hearing for President Obama’s appointment of Merrick Garland. This year, some Senate Democrats came out against Trump’s pick before he even made it.
It isn’t going to get better anytime soon.
It’s time to reinvigorate our democracy by ending lifetime appointments to the Supreme Court. No one in America should have a guaranteed job for life.