Until Death Do Us Part?

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


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.

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.