Life tenure for justices outdated (San Francisco Chronicle) November 6, 2005

It’s just our luck to live in a time of nonstop political campaigns. As soon as this week’s special election is over, the next campaign begins in earnest: the campaign for (and against) Samuel Alito Jr. as associate justice of the U.S. Supreme Court. No, you and I aren’t voting on this one. But in every other respect, the constitutional process that calls for the president to “appoint” a Supreme Court justice with the “advice and consent” of the Senate has, in recent years, been transformed into a full-scale political campaign, complete with all the special-interest lobbying, media frenzy and political warfare.

This process – one of few intersections where the executive, legislative and judicial branches of our government meet – has now become a notorious cash site. People tune in to watch pompous senators grandstanding, court nominees finessing and presidents calling in political debts and favors. Will the nominee be “Borked”, a reference to a prior crash victim? Will the president blink and withdraw a controversial appointment before the actual collision, as Bush did recently with Harriet Miers? At least in academic circles, people are beginning to ask whether we shouldn’t do something to fix the Supreme Court appointment process. One suggestion is to admit that it is now a political campaign and allow voters to choose justices at the ballot box. In his recent book on the subject, Brigham Young University professor Richard Davis points out that in 21 states, voters participate in choosing state supreme court justices, and in another 13, appointed justices must later face the voters. With two-thirds of state supreme court justices standing for elections, why not the national justices also, or so the argument goes.

Others think the Constitution was right to place the appointment in the hands of the president and the Senate, but that something should be done to reduce the political warfare. One of few reform proposals that would not require a constitutional amendment would be to eliminate the possibility of an endless Senate filibuster on judicial appointments. Since Article III of the Constitution provides for a majority vote to confirm judicial appointments, the Senate filibuster means that a minority of senators can block an appointment. This seems like an obvious end-run around the constitution and the rule should be changed to require only 51 votes to stop a filibuster. Making certain judicial nominees can receive a “yes” or “no” vote would reduce some of the animus and warfare.

Even more creative are proposals to turn down the politics by lowering the stakes. A recent paper by professors Steven Calabresi and James Lindgren of Northwestern University proposes term limites for Supreme Court justices who, under their formula, would serve staggered 18-year terms, providing the appointment of a new justice every two years. Part of the problem, they argue, is that lifetime appointments in a time of improved medicine mean that justices are serving much longer and that there are fewer vacancies and less turnover than before. For example, there has been no change on the court for 11 years now, with two vacancies, the political pressure is unusually high. With life expectancies more than double those of the Founding Fathers’ era, and judges now serving, on average, 10 years longer than those who served before 1970, their point is well taken. Indeed, among the 50 states, only Rhode Island has lifetime tenure for its supreme court justices and no other democracy in the world provides a lifetime appointment for the judges of its highest constitutional court. All the other courts either have term limits, a mandatory retirement age, or both. Structural reform is not substitute for statesmanship and good judgment by our elected leaders. But I, for one, am ready for term limits and changes to the filibuster rules. An appointment process that leaves judges in place too long and requires “Armageddon” to replace them needs to be fixed.

This op/ed appeared on Page E-7.