The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Few people who care about the judiciary are happy with the partisan bickering, brinkmanship and obstruction that now surround judicial nominations. As I've explained at length before, it took three decades to get this far into the downward spiral, and it sometimes appears as if we're past the point of no return. Each side seeks to retaliate against the other for prior obstruction, and neither is willing to let up lest they cede temporary partisan advantage. It's all quite depressing.
There are various proposals to try to de-escalate the judicial confirmation battles. I made one such proposal here, suggesting a recess appointment of a retired justice to be followed by a filibuster-free confirmation process after the next election. Below, my co-blogger Orin Kerr makes the case for placing term limits on Supreme Court justices.
Here's the core of the term limit proposal:
Imagine each Justice was appointed to an 18-year term instead for life. With nine Justices, you would have a vacancy every two years. Every Presidential election would mean two vacancies at stake. A new President taking office in January would know that the first vacancy would come up a few months later in July, when the Supreme Court finished the work of its annual term. The second vacancy would come exactly two years later. Justices from previous times would cycle off the Court at predictable times, and they would be replaced by new Justices reflecting the current President and Senate. The ideological makeup of the Supreme Court as a whole would tend to reflect the President and the Senate at two-year intervals going back over the previous 18 years.
It's a promising idea. By ensuring that Supreme Court vacancies occur at regular, predictable intervals, it would tie the court's composition to presidential elections more closely and, perhaps, induce greater restraint by political partisans as it would be easier to foresee when the shoe might be on the other foot.
One problem that Kerr notes is that such a change would require a constitutional amendment. That's true, and it could prevent such a proposal from ever getting adopted. Amending the Constitution is exceedingly difficult.
A second problem that Kerr does not address is how to get from here to there. Any proposal of this sort needs transition rules to get from the current situation—justices who serve as long as they wish and cannot be removed absent impeachment—and a regularly cycling court of term-limited justices. Simply phasing in term-limited justices would not work because there's no assurance that existing justices would leave the court at the appropriate intervals.
So my question for advocates of placing term limits on Supreme Court justices is, how they would deal with the transition problem? Do we temporarily increase the size of the court? Allowing a new justice every two years for 18-year terms, while leaving current justices in place? That's allowable, insofar as the Constitution does not set the size of the Court, but it would mean that the court would go through a potentially lengthy period of consistently changing size. Justice Elena Kagan, for instance, might stay on the court for another 30 years, meaning such a proposal would create a court of 10 or more justices for decades into the future.
A third potential problem is timing. The president who is the first to be subject to the new rule would have substantially less ability to influence the future of the court than his or her predecessors. As a consequence, some would resist this proposal because they would be concerned that they (or their side) might be shorted by the change. This sort of objection might be addressed by delaying the effective date until after an intervening election, but this could introduce new problems, such as the opportunity to game the rule by encouraging like-minded jurists to resign in anticipation of the rule change. This is not necessarily a fatal flaw in the term limit idea, but it's another issue to be addressed.
Whether or not term limiting justices is the best way to de-escalate current nomination fights, it is long past time for those who care about the judiciary to identify possible reforms that could achieve this result. Simply urging those across the aisle to stand down is not an option; neither Republicans nor Democrats are going to engage in unilateral disarmament. Yet until some form of de-escalation occurs, the politicization of judicial nominations—and the judiciary—will get worse before it gets better.