Term limits for justices are the best way to fix this Supreme Court mess

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Is there anyone who thinks that the current way we nominate and confirm Supreme Court justices is good for the bench, the nominees, the Senate, or the warring factions? It is almost certainly impossible to take politics out of the process entirely, but we can reduce the heat if we lower the stakes by regularizing appointments and limiting the terms of the justices to 18 years. The only way we can be sure it will be done and not overturned when there is a shift in power is to amend the Constitution.

Americans have come to accept the idea that the Supreme Court will have the final word on some of the most controversial issues of the day, such as guns, abortion, gerrymandering, and same sex marriage. There is nothing wrong with the president making the selection and the Senate having a check on the selection. However, it is the combination of a lifetime appointment, often stretching beyond 25 years, and the ability of sitting justices to time their departures so that a president of their choosing can pick their replacement, that have made the process so contentious.

{mosads}It is vital for their independence that the justices not be kept on a short leash, but 18 years seems more than ample for that purpose. Life tenure might be better, but it is a luxury the country cannot afford given how the current confirmation process is working, or rather, not working. Equally as important is to regularize the appointments so that no justice can ever again decide, as Justice Anthony Kennedy did, to bestow the gift of a Supreme Court appointment on the president of his choosing.

Here is how it would work. The nine justices would still be nominated by the president and confirmed by the Senate. But they would serve for 18 years, instead of as long as they wanted, and every two years a new justice would be nominated. The longest serving justice would then become a senior justice, who could sit on other federal courts, as a number of the justices have done and are still doing, and fill in for true emergencies when a tie vote is unacceptable. Think of Bush v. Gore and the fate of the 2000 election with a vacancy on the Supreme Court.

Each president would have two selections, probably in the first and third years, so that voters could take those two appointments into account when they cast their ballots. The randomness of Richard Nixon naming five justices in less than six years and Jimmy Carter getting none would never happen again. There would still be battles over particular nominees, but the shorter length of the appointment and the realization that regular opportunities are certain to arise after the next presidential election might reduce the rancor and perhaps produce more centrist justices.

Life tenure for justices of the Supreme Court is an anomaly among our state courts and other nations, but that is not a reason alone to make the change. However, limiting terms to 18 years would have the added benefits of eliminating the incentive to appoint younger justices, when most observers think that wisdom comes with age and that overall the country would be better if justices were closer to age 60 than age 40 when they are chosen. While the problem of a justice serving longer than his or her physical or mental health is up to the demands of the office is not a major concern, term limits will lessen that possibility as well.

I have supported this basic idea for more than a dozen years, but I wanted to do it by statute, which I concluded would be more likely to happen and come sooner than changing the document our Founding Fathers gave us. I have now concluded we must amend the Constitution to make the change stick. Although a statute would probably be both legal and effective, I fear that it would be vulnerable to a shift in the political winds whenever there was a change in control of the federal government and those in power decided that another system would favor them.

Statutes are never permanent because one Congress cannot bind the next, except by amending the Constitution. Opening up Article III to add term limits for the justices, but not other federal judges who do not stay as long or have as much power, may be seen by some as a risky idea. However, doing nothing and continuing the kind of raw political battles since the death of Justice Antonin Scalia only threatens to do lasting damage to the Supreme Court from which it might never recover.

Alan Morrison teaches constitutional law as a professor and is the Lerner Family Associate Dean of Public Interest at George Washington University.

Tags Congress Constitution Government President Supreme Court United States

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