Views My Own

Lifetime Supreme Court Appointments Are a Total Disaster

The Kavanaugh nomination battle underscores how much we need to change the system.

by Harry Cheadle
Sep 20 2018, 8:18pm

Ruth Bader Ginsberg and Anthony Kennedy sit for a portrait. Photo by Alex Wong/Getty

At this point in the protracted battle over Brett Kavanaugh's nomination to the Supreme Court, the two sides have firmly dug themselves in. Democrats want the FBI to look into allegations from Christine Blasey Ford that Kavanaugh tried to rape her when they were both teenagers in the 80s, but Republicans are resisting that call, instead rushing to hold a Senate hearing on Monday. If she doesn't testify on that day, GOP senators—even the relative moderates being pressured by liberals to oppose Kavanaugh—seem ready to vote to confirm him. Clearly spooked by the possibility they'll lose control of the Senate in November, there's still a very good chance that Republicans grant Kavanaugh a lifetime appointment to the country's highest court next week. There, he'd help form an immensely powerful bloc of five conservative justices.

It's not hyperbole to say that vote is one of the most consequential in recent decades—but the stakes shouldn't be so high.

There's a simple way to shield the country from prolonged suffering under a bad Supreme Court justice and remove the incentive for confirmations to turn into apocalyptic tests of political will: We should stop letting Supreme Court justices sit on the bench until they die.

This is an argument that has been made many times by many people over the years, but it's worth making over and over again because, well, it's a good one. Under the current system, presidents get to pick a random number of Supreme Court justices based on who dies or retires, with justices having an incentive to retire when an ideologically sympathetic president is in office. Presidents are incentivized to pick young justices so they can serve longer terms—and thanks to modern medicine extending lifespans, those terms are getting longer all the time. Meanwhile, as partisanship has ramped up in Washington, the court has become more politicized, with many major rulings decided by 5–4 votes that break down on predictable ideological lines. Sometimes, it seems like the Supreme Court is merely another legislative branch, one more powerful than Congress but even less accountable to voters.

In recent years, the Senate has begun to treat the courts—especially the Supreme Court—as what they obviously are: another avenue along which naked political power can be exerted. When Republicans blocked Barack Obama's appointment of Merrick Garland from the jump in 2016, it was a violation of a longstanding norm that Supreme Court nominees get hearings. But it also made total sense if you look at the court as just another partisan battleground. If the opposition party can block a president's appointment, thus depriving them and their allies of some power, why shouldn't it do so? If Democrats retake the Senate in the midterms, why shouldn't they become similarly obstructionist? Looking further ahead, if Democrats control the federal government in 2021 but have their agenda blocked by five conservative justices, why shouldn't they use any (plausibly legal) means necessary to change the composition of the court? With the stakes as high as they are, any maneuver can be justified when it comes to Supreme Court politics, and escalation seems inevitable—Democrats and Republicans can both point to the other side, going all the way back to the 80s and Robert Bork, and say those guys were responsible for everything going to hell.

Instituting Supreme Court term limits wouldn't cure the underlying toxicity of our politics, but at least it would limit that toxicity's impact in one key arena. How these term limits would work can be debated, but one idea is to create 18-year terms and stagger them so that each president is guaranteed two appointments per term. Given what happened to Garland, you'd also probably want to end or at least limit the Senate's power to block nominations, though you could leave intact the legislative branch's ability to impeach justices in extreme circumstances.

The benefits of this arrangement are obvious. Presidents wouldn't be encouraged to pick the youngest candidates and would look for the best nominees regardless of age. Justices wouldn't feel pressured to stay on the bench until they get a friendly president to nominate a replacement. It would also mean that the court would be somewhat more responsive to the country as a whole—if one party won a string of major electoral victories, it would make sense that that party should also get a chance to appoint more justices as well.

The Constitution stipulates that federal judges serve indefinite terms, so term limits would almost certainly require a constitutional amendment—which isn't likely to happen. But way back in 2005 the Democratic DC lawyer Robert Bauer proposed a workaround: Presidents could nominate only justices who agree to serve limited terms, and over time a new norm would be established. However tenuous norms like that might seem right now, with something resembling term limits, the US would join every other democracy in the world in not having lifetime appointments for its highest court.

Term limits wouldn't directly affect the current Kavanaugh controversy: People would still protest his confirmation given the accusations against him and his right-wing views, and his allies would still defend him. But if presidents got a set number of appointments that almost certainly couldn't be blocked by the Senate, maybe Republican senators wouldn't feel pressured to confirm him before the midterms, and maybe Democrats would be reassured that if they defeated Trump in 2020 they would be able to reverse the rightward drift of the country.

I think this all sounds very sensible—of course, no one gives a shit what I think. The Republicans currently in control of the federal government will not give up a single lick of power no matter how reasonable it might be in the long term. When Democrats inevitably take back Congress and the White House, they'll have every incentive to adopt a similar scorched-earth approach to governing, and it's very likely that the Supreme Court will become even more politicized as increasingly antagonistic parties tear down norms for the sake of consolidating power. By then, we'll have wished we turned down the temperature of our politics, but of course it will be too late.

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