Thursday, July 7, 2005

Limit Tenure?

Bruce Bartlett offers what seems on the surface, at least, to be a fine idea in the Washington Times:

Lately, something of a consensus has developed around a constitutional amendment to limit justices' terms of 18 years, staggered so there would in theory be an opening every two years. This means every president serving a full term would likely make two appointments to the Supreme Court.

I believe elimination of life tenure, through this scheme or another, would greatly reduce the intensity of Supreme Court appointment battles because the stakes would not be so high. Both sides would know if they failed this time around, they would probably have another chance within two years.

Eighteen years is longer than the historical average tenure for a sitting Justice. Bartlett notes that:

Historically, people were appointed to the Supreme Court relatively late in life -- as a capstone to long careers in law or public service. Today, there is a much greater effort to appoint relatively young justices so they will spend as much time there as possible. There is also greater pressure for justices to avoid retiring until severe physical infirmity demands it.

For these reasons, tenure on the court has increased over time and turnover has fallen. According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average justice's tenure has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice leaving office has risen from 67.6 years to 78.8 years between the same periods. And the average number of years between court appointments has almost doubled from one every 1.67 years to one every 3.27 years. The current makeup of the court is one of the longest in history, lasting more than 10 years, since Justice Stephen Breyer's 1994 appointment.

Good article, good idea. Bartlett offers a couple of other advantages of this proposal in his essay. Unlike other suggested constitutional amendments this one would be easy for both conservatives and liberals to vote for. We doubt, though, that anyone in Congress would expend the energy to really push it unless there are some really ugly nomination fights over the next couple of vacancies.