Until Death Do Us Part?

Time for a fresh look at life terms on the Supreme Court

| Fri Aug. 26, 2005 3:00 AM EDT

Should U.S. Supreme Court justices serve life terms? This is a question that is raised whenever there is a vacancy on the Court. At 50 years of age, Judge John Roberts, President Bush's Supreme Court nominee, could serve for decades.

Perhaps more than any single factor, this "until death do us part" constitutional requirement has been responsible for bruising confirmation battles. On the partisan chessboard, nailing down one of nine Supreme Court spots is a major victory.

But a survey of judicial appointment practices in other democracies suggests there may be better methods for selecting the U.S. Supreme Court. For instance, some democracies employ judicial term limits. High court justices in Germany are limited to a 12-year term, and in France, Italy and Spain a 9-year term. There's American precedent for judicial term limits, with judges on the U.S. Court of Federal Claims limited to 15-year terms. Also, members of the Federal Reserve Board, shielded from politics because they oversee the nation's economy, serve 14 year terms, with their Chairman Alan Greenspan appointed for a four-year term.

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Some nations require that high court justices retire at a certain age. In Israel and Australia that age is 70, in Canada it's 75. A few American states also have established a retirement age for judges, 70 years in Minnesota and Missouri. If applied to the current Supreme Court, three justices would have retired already with two more stepping down next year.

Interestingly, for America's first twenty years Supreme Court justices averaged 13 years in service. But between 1989 and 2000 the average term for Supreme Court justices doubled, to about 26 years. Two current justices have been on the high court for more than 30 years, including the Chief Justice. In recent years, the average retirement age has risen from 67.6 years to 78.8 years, according to Northwestern University law professors Steven Calabresi and James Lindgren.

Beyond judicial term limits and a mandatory retirement age, it's also worth considering multiple appointing authorities. In France, Germany and Italy, no single person or institution has a monopoly on appointments to the constitutional court. In Spain, four judges are appointed by the upper-house, four by the lower house, two by the government, and two by a Judges Council.

Bipartisan appointments also hold promise. The Senate might review only nominees proposed through a bipartisan selection procedure. As a step in that direction, one option is to require a confirmation vote of sixty Senators instead of a simple majority. Since no one party usually would have 60 votes that would nudge the parties towards bipartisan consensus.

Requiring 60 votes also would be an acknowledgement of how distorted is representation in the U.S Senate. Out of 100 Senators, only 14 are women and five are racial minorities. But they aren't the only constituencies underrepresented in the Senate.

According to Professor Matthew Shugart from the University of California-San Diego, for the past three election cycles over 200 million votes were cast in races electing our 100 Senators. Republicans won 46.8% of the votes in these elections -- not a majority -- but the Democrats won more votes, 48.4%. Yet the GOP currently holds a lopsided 55 to 44 majority. In 2004, Democratic senatorial candidates won over 51% of the votes cast, yet Republicans won 19 of 34 (56%) contested seats. So the minority party holds a majority of Senate seats.

This GOP over-representation is due to Republican success in low-population, conservative states in the West and South which are given the same representation -- two Senators per state -- as high-population states like California. The 52 Senators confirming Clarence Thomas in 1991 represented only 48.6% of the nation's population, showing that Senators representing a minority of voters can confirm a justice for life. A body as unrepresentative as the United States Senate should not be confirming lifetime appointments, especially by simple majority vote.

Defenders of the status quo undoubtedly will view any tampering as an assault on judicial independence. But the bitter partisanship of the current process has deeply undercut all notions of justice and fairness.

Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing and confirming authorities would help to decrease the politicization, create a modest amount of turnover, and ensure that one party doesn't monopolize the process. In these times of extreme partisan polarization, that would be good for America.

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