Term Limits

Pitfalls of Statutory Term Limits for Supreme Court Justices

Supreme Court term limits are a good idea. But they must be enacted by constitutional amendment, not by statute.


Credit: Fix the Court.


On Friday, Democratic Representatives Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) introduced a bill that would impose 18-year term limits on Supreme Court justices:

Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become "senior justices" able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.

For reasons outlined here, I very much support the idea of term limits for SCOTUS justices (see also Steve Calabresi's recent NY Times column defending them). But enacting them by statute is both unconstitutional and likely to set a dangerous precedent. Legal scholar Michael Ramsey has an excellent discussion of the constitutional problems at the Originalism Blog:

The consensus of legal scholars seems to be that this is unconstitutional if done by statute.  I'd like to be a contrarian and say otherwise, but I can't.  Indeed, I think this is another example…. where the Constitution's text is clear, if read carefully and without a view to evasion.

Article III, Section 1 provides:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…

I'll assume here that the "good Behavior" standard means the judges hold their offices for life unless impeached and removed under Article II, Section 4…. So, as a starting point, a simple term-of-years for Supreme Court Justices is a constitutional non-starter.

The Khanna et al. proposal apparently tries to get around that restriction by redefining the "office" of Supreme Court Justice as hearing cases for 18 years (I'll call it phase 1) and then serving as a backup "senior Justice" in case of temporary vacancies (phase 2).  Rotating from phase 1 to phase 2 wouldn't be a removal from office, it is argued, because the office, by definition, includes both phases of service.

This doesn't work for me.  Article III, Section 1 creates "Offices" of "Judges … of the supreme and inferior Courts." Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally.  This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure.  (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time).  And Article III, Section 1 goes on to say that the judges shall hold "their Offices"—that is, their offices as members of the Supreme Court—during good behaviour.

Ramsey's critique implicitly highlights a possible negative consequence of assuming Congress has the power to impose term limits by statute: If Congress can impose an 18 year term limit, they can also impose much shorter ones, such as a five year limit or a two year limit. That would make it easy for any party that controls both Congress and the White House to get rid of justices whose rulings they dislike, and replace them with more supportive jurists. And if Congress can impose term limits on all justices, they can also selectively impose them on specific justices it especially wants to get rid of, while leaving the others alone. For example, if a Democratic Congress wished to get rid of Gorsuch, Kavanaugh, or Amy Coney Barrett (assuming she gets confirmed), they could pass a law imposing very short terms on justices appointed in 2017, 2018, and 2020, respectively. Republicans could use similar tactics to target liberal justices who might otherwise become thorns in their side.

One can argue that politicians would be prevented from doing such things by political norms. But, as we have all seen in recent years, norms have a way of fraying and even collapsing in times of intense polarization. If you're a Democrat, would you really trust Republicans to follow norms on this issue, when it becomes inconvenient for them to do so? If you're a Republican, would you trust the Democrats to do the same?

I'm not suggesting that the Khanna proposal is itself motivated by such partisan calculations. To the contrary, I think he and his co-sponsors are acting in good faith. One indication is that they exempt current justices from the term limits, thus making it impossible to use the bill to get rid of current conservative justices liberals dislike. In theory, Amy Coney Barrett might be subject to the term limits if the Khanna bill passes before she gets confirmed. But in practice, such a scenario is highly unlikely.

But once it is generally accepted that Congress has the power to impose term limits on Supreme Court justices by creative redefinition of the office, that power can be also used in less scrupulous ways. And such tactics are likely to be attractive to politicians seeking partisan advantage.

And most politicians are not exactly known for their principled adherence to inconvenient norms. The recent history of Supreme Court nominations and other judicial nomination battles shows that most aren't even willing to stick to norms they themselves embraced just a few years ago. Democrats and Republicans have repeatedly jettisoned their own professed principles on such matters as whether the Senate should consider nominations for vacancies that arise during an election year, whether it is appropriate to filibuster judicial nominees, whether senators can legitimately oppose nominees based on ideological considerations, and so on. The GOP's egregious recent flip flop relative to their 2016 positions is just the latest in a long string of "hardball" tactics deployed in the ongoing political battle over judicial nominations.

By all means, adopt term limits for Supreme Court justices. But let's do it by constitutional amendment. That is both the legally correct path, and the one less likely to create a dangerous slippery slope.

I criticized statutory term limits and related "rotation" proposals for Supreme Court justices in greater detail here and here.

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  1. A couple of typos herre, Prof. Somin:

    This sentence needs a verb:

    “And most politicians not exactly known for their principled adherence to inconvenient norms. ”

    The sentence following it is missing a space between two words.

    That said, why mention the ” GOP’s egregious recent flip flop relative to their 2016 positions” and not mention the similar flip-flops of the Democrats? Why single out the GOP? Besides, it’s not the GOP that flip flopped, it’s certain politicians who happen to be members of the GOP. Likewise for the Democratic party and certain democratic politicians. I don’t think the party itself made a statement.

    1. I suggest reading some of the earlier posts by VC members, specifically addressing this issue. I doubt you will be convinced…but most people will be. It would be worth a read, even if only to educate yourself on what the other side is arguing.

      1. Not only do they flip flop, they flip flop on flip floping, by calling it an evolving position on a subject.

    2. You know, ThePublius, with all the ‘squealing’ we keep reading, you know that it hurts. A lot. The amount of squealing is directly in proportion to the perceived pain.

      Regardless, ACB will be confirmed to SCOTUS. She will be a fine Justice…..for decades one hopes.

  2. Perhaps Congress could, going forward, restructure the Judiciary Act so that there in effect a whole bunch of Circuit judges who are nominated and confirmed simply as circuit judges, to no particular court, and then they are designated, by some process of nomination combination and confirmation, to sit in particular locations and roles, for periods of time. And so, from the pool of all confirmed circuit judges, some number (nine?) are designated for some term of office (18 years?), on the supreme bench, after which they naturally return to a specific circuit.
    I mostly put that out as a straw man to shoot holes in. I don’t think it works . In the first place, it might not fit within the Article III Section I stipulation that there be a Supreme court and that its judges hold their offices during good behavior. And second, it might permit Congress to create a 13th Circuit, whose jurisdiction is pretty much limited to American Samoa, a nice sunny place for involuntary retirement.

    1. “And second, it might permit Congress to create a 13th Circuit, whose jurisdiction is pretty much limited to American Samoa, a nice sunny place for involuntary retirement.”

      I think they could already do that, but only for judges, not Justices.

  3. The GOP’s egregious recent flip flop relative to their 2016 positions

    If either side flip flopped, BOTH sides flip flopped. They were on opposite sides in 2016 AND are on opposite sides now in 2020.

    1. This is getting tedious. Right wingers insist it is all perfectly okay to flip flop on their own appointment principles, but then get all defensive when someone criticizes. I guess they know it’s okay, but are worried that other folks won’t agree.

      1. He didn’t say anything of the sorr you describe, he’s just saying that both sides flipped on their 2016 positions, while Prof. Somin only indicts the GOP.

        1. Post’s post explains why that makes sense.

          1. Not quite, Sarcastr0. Why? Because when you boil it all away, you and I know that there are only two rules, written in the Constitution. The POTUS nominates, the Senate confirms (or doesn’t). Everything in between those two actions are plain old politics.

            Post is complaining about politics. Pfffft. Who doesn’t complain about politics?

            1. This is not a discussion of what is Constitutional, but what is normatively good.

              If you didn’t care, you wouldn’t insist so hard that whatever is Constitutional is fine.

              Except for court packing, that’s Constitutional but not fine.

              1. Normatively good. LOL. In the words of one candidate, “C’mon man”.

                1. OK, then lets just say ‘good.’

                  What’s strictly legal and what’s good are two different things.

                  You argue they are not.

                  That’s not a recipe for a good society; you can’t codify everything.

                  1. The system isn’t based on interpretation by random individuals. It’s based on the Constitution, and laws. Discussion of ‘good,’ normative behaviors, et cetera is dissembling. Both parties will take actions to advance their goals, then use pretty language to pretend they aren’t simply cold and calculating. It’s on us to realize this and not waste time pretending otherwise.

                    1. Hank Ferrous — You have neatly summarized a position the opposite of the framers’ positions when they discussed generally what was required to make self-government work. Of course, there is no requirement that anyone align themselves with the framers on anything. But it might prove wise to double-check your reasoning when you so flagrantly contradict them, given that many generations of statesmen and politicians have tended to hew more to their wisdom than to yours.

          2. “Post’s post explains why that makes sense.”

            No it doesn’t.

            Its “my side good, your side bad” reasoning at its finest.

            1. Just because you can’t do reading comprehension beyond your partisan rage doesn’t mean no one else can.

          3. Post’s post does nothing of the sort. your post does nothing of the sort. If you think Post’s post explains why only one side is hypocritical when both sides flipped, explain please. Comments here are free, and according to you, it should be a simple copy-n-paste.

            1. Because insisting the other side abide by their own rules is not taking a normative position.

              The Republicans have taken 2 normative positions in conflict – Do not confirm close to an election, and do confirm close to an election.

              The Dems have not – they say confirm close to an election, and also the Republicans were lying about their first normative position.

              1. “they say confirm close to an election”

                I think the point is that a Dem (or R!) who said ‘OK to confirm near an election’ for Merrick, and is also now saying ‘OK to confirm for ACB’ can indeed polish their halo – they are sticking to a consistent principle even when contrary to their interest (as could an R who said ‘we should wait’ for Garland, and is also saying wait for ACB, if there are any).

                People who flip-flopped, even if the motivation is ‘we’re flipping now because you flipped then’ have a halo that’s not quite as bright as people who have been consistent all along.

                (to invert the parties, R’s who were all in favor of the filibuster until the D’s changed it, and now say ‘they changed it, so now that we have a majority, we’re sticking with the change’ also don’t get the full shine on their halo)

                Character shows best when you stick to your principles even to your disadvantage. It’s nice to be accurate figuring the bill when someone owes you money, but true character is being equally accurate when you are figuring what you owe.

                1. The Dem’s argument is quite clearly about Reps sticking to their previous word more than any change from their original argument.

                  That’s why Garland is brought up so much.

                  1. Right. And one shouldn’t be to holy about ‘OK, now that your rule happens to help me, I’m all for it’.

                    Their are three moral tiers here.

                    The bottom tier is ‘Merrick was too close to the election, but ACB isn’t’. Even for a politician, that’s sleazy.

                    The middle tier is ‘Confirmations close to the election are fine, but since y’all shafted Merrick, here is your own medicine back at you’. That’s above the bottom tier, but not exactly a shining example of morality.

                    The upper tier is sticking to a consistent principle both times (whatever that position is). Among politicians, this tier may be empty; highly moral people rarely reach the upper tiers of politics.

                    (TBH, since it seems like ACB will be confirmed anyway, I’m a little surprised at least some D’s don’t wrap themselves in holy raiments and populate the upper tier … lots of morality points, no change in the outcome. Seems like free polish for their halos))

                    1. I’d argue the middle tier is necessary if you’re going to remain functional in a political struggle with folks pulling the bottom tier.

                      The voters on either party will not allow Mr. Smith moments these days.

              2. The Dems and GPO have BOTH flipped from 2016 to 2020. You’d have to be a blind deaf partisan Rip van Winkle to not know that.

                1. Read what I wrote. Or what Post wrote. FFS.

  4. If you are going to impose an 18-year term limit, you better also impose a 70-year minimum age. Anything less and the justices will behave like too many legislators do. Justices will be looking for opportunities to curry favor with people who come before them, who might be positioned to offer lucrative post-Court employment.

    1. Ha, I like it. But I think a minimum of 60 is more practical, no?

  5. I assume that would also require an Amendment. Not just an act of Congress.

    But why not take advantage of modern technology and get rid of a single Supreme Court or regional appeals courts? Appoint people to be appeals court judges, but the cases they hear would be chosen by lot and distributed across the national panel of judges. Rotate the composition of each court once or twice a year. From the group of appeals court judges who have been sitting for some minimum time ( 3 years? 5 years), randomly select 9 to serve for a fall or spring term on the Supreme Court. No need to move to DC, all work again done online. This would move the battles to the large number of appeals court judges. There would be no such thing as long term predictability of the political tilt of the Supreme Court. Not only would the membership change twice a year, but the membership at any time will be a random lot from the total complement.
    One could try to pack the Court by increasing the number of eligible judges and making them all fit one or the other party’s profile. But it would take years from the time appointed to an appeals court to becoming eligible to serve for a term on the Supreme Court. And no assurance at all that a term would come up as soon as eligible, maybe not for a long time.

    There would still be room to fight about the overall composition of the appellate judiciary, but there would be no way to predict the bias of any particular court, or even to which court your case might be assigned.

    1. And pretty soon no one would have any idea of how this all works. One extreme virtue and also source of frustration with the Constitution is its simplicity. Let’s not foul it all up with this kind of complexity. How many baseball fans can correctly explain the infield fly rule?

  6. I take these attempts at monkeying with the Constitution in the same was as someone suggesting we should fix the smile on the Mona Lisa. Convince me you’re as smart and as principled as the founding fathers, or as talented and artistic as Leonardo, and you can go ahead and do the former or the latter, respectively. Otherwise, hands off!

    1. So you’re against all the post Bill of Rights Amendments, as they go against the divinely inspired Founders?

      Don’t deify a dead hand.

      1. Leonardo’s hand may be dead, but the smile lives on.

        1. Wonder what is different between paintings and Constitutions where one being amended is a horror and the other is normal.

    2. It’s true that we should be wary concerning monkeying around with the Constitution — but the Founding Fathers recognized this, which is why it takes 2/3 of both Houses of Congress, or a Constitutional Convention convened by 2/3 of the States, to propose Amendments, and 2/3 of the Legislatures of the various States to approve the Amendments, before Amendments become part of the Constitution.

      We shouldn’t be wary of questioning the current system, and debating how this proposal or that would affect our country. There’s a First Amendment for a reason, and this is one of the reasons.

      Until a position becomes popular enough that it stands a good chance of passing through this process, though, we shouldn’t worry about “monkeying” with the system.

  7. No, they are not a good idea. States are supposed to be the laboratories of democracy. Why does no one (including, apparently, Prof Somin) actually look at the results in states that have already implemented term limits?

    Term limits do not magically clean up government and they do not automatically stop accusations of partisanship and bias. On the contrary, they have the effect of transferring power from the current officials to unelected bureaucrats.

    That said, Prof Somin is correct that imposing term limits on SCOTUS will require a constitutional amendment. Attempts to impose it by statute are a waste of ink.

    1. “Term limits do not magically clean up government and they do not automatically stop accusations of partisanship and bias. On the contrary, they have the effect of transferring power from the current officials to unelected bureaucrats.”

      None of this makes any sense in the context of an 18 year term limit for a judge.

      I tend to agree with your general critique of term limits, but you seem like a bot just posting the same response regardless of the proposal. If there are states with very long term limits for Supreme Court justices, let’s hear what the evidence says about it, but it’s probably a pretty big difference from relatively short term limit for legislators or executives.

      1. I’m trying to decide if that criticism is fair. Implicit in your comment is the assumption that all states that tried it imposed comparatively short term limits – much shorter than 18 years. That’s sometimes true but not, I think, universally true. The difference between 8 or 12 or 16 is not all that much in my opinion.

        There’s also an implication that legislative or executive branch term limits will behave differently from judicial branch term limits. Maybe. I don’t see why it should be but I don’t have clear evidence that it’s not.

        My challenge stands, however, that if Prof Somin really wants to make the case for term limits, look at jurisdictions that already tried them and demonstrate to us that they are better. Professors are supposed to have the resources and flexibility to take on research that is infeasible for the rest of us work-a-day schlubs. Make the case. Don’t simply assume the premise.

  8. If the Democrats cannot even get a Senate majority or a House electoral majority then their chances of getting a constitutional amendment passed is virtually nil. There will be no Republican support for anything Democrats propose even if it something they want themselves. Full stop.

  9. Any Constitutional amendment to introduce term limits on Justices should also include a mechanism for removing a Justice who is no longer capable of performing their job and is not expected to be able to do so in the future.

    Something along the general lines of Section 4 of the Twenty Fifth Amendment might be appropriate. Perhaps it would be initiated by a majority (excluding the Justice who is a target of the action and only counting those Justices who are able and willing to vote “yes” or “no” to the action) of Justices submitting a declaration proclaiming that the targeted Justice is unable to perform their duties and an indication of why this is the case. From that point on, it could operate much like Section 4 of the Twenty Fifth Amendment but perhaps would require approval of two-thirds of only two of the three entities consisting of the House, Senate, and President.

    1. That would require a supermajority. Otherwise a bare majority of the Court would be all you’d need to start packing it by removing the minority.

      If a justice is really incapable of doing the job, this should be something the other justices can generally agree on, so a super majority should’t be a problem.

    2. There already is a mechanism to remove a Justice who is no longer capable of performing his/her job. It’s called impeachment. While we usually think of impeachment as “high crimes and misdemeanors”, the actual standard for Justices is “during good behavior”. Inability to do your job may not be actively bad behavior but it’s also not good behavior.

      1. The key difference between the 25th type mechanisms and impeachment is that the person is suspended while the process is taking place. It’s more effective in cases where the need is to address immediate and ongoing damage, rather than punish past conduct.

  10. They want Congressional terms for life, but not for justices.

    The House of Representatives is by default a non entity.

  11. Both Republican and democratic members of Congress sem ignorant of the Constitution. Which is frightening.

    But when a dem finds out that there is a Constitutional block to something, their attitude is to ignore it, or get the courts to make it go away.

    Republicans will stop talking about it, or prepare an Amendment.

  12. “(Otherwise, Congress could define the “Office” of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time)”

    Wasn’t that one of the characters in *Northern Exposure*?

    “The recent history of Supreme Court nominations and other judicial nomination battles shows that most aren’t even willing to stick to normsthey themselves embraced just a few years ago.”

    Here’s the only norm politicians recognize if they’re able to do something they want to do:


  13. I believe that Sonia Sotomayor is qualified to be dogcatcher of East Outback, Alaska.

    1. Maybe a penguin catcher.

      1. She’d need a very long handle for her net.

      2. She would not be very busy, there are very few penguins in Alaska.

  14. Study history. The Supreme Court has worked pretty well through political divides in the past that make the current disputes look like a pillow fight. If it ain’t broke, don’t fix it.

  15. Interesting exercise: If judicial term limits are desired via constitutional amendment, what is your recommended text? Calling all members of the Committee of Style:

    Here’s a starting point:

    Section 1. No person appointed under Article III shall serve as a magistrate, judge, or Justice for more than a total of 24 years.

    Section 2. There shall be nine Supreme Court justices, each appointed for one 18-year term. If a vacancy occurs during a term, the President may appoint a new Justice for the remainder of the term, with the advice and consent of the Senate.

    Section 3. Terms of Justices shall be staggered by two years from one another, with each new term commencing 120 days following the beginning of each new Congress.

    Section 4. Any Supreme Court Justice serving on the date of this amendment’s ratification may serve the remainder of their current term. In this case, that term shall be determined by longevity on the Supreme Court, with the longest serving Justice’s term expiring in two years, and…(this amendment writing is hard stuff!)

    And, don’t we have to talk about “shall hold their Offices during good Behaviour” and what that means?

    What’s your expert contribution — properly policy, clarity, brevity, and style?

  16. Why not amend the constitution?? I think there is bi-partisan support in Congress, and I think you would get the three fourths of the states to support it.
    Give it a shot.

  17. I think he and his co-sponsors are acting in good faith

    I appreciate that Prof. Volokh allows Prof. Somin to practice his standup comedy routine on this blog.

  18. I have an alternative proposal.


    1. A single 18 year term is desired by a significant current majority of Senators
    2. Senators individually, and in their groups are, morally, lower than vermin, and therefore likely to welch on any deal if they see some short term advantage
    3. A Constitutional Amendment is too difficult


    The Senate amends its Rules to provide that the following Oath be administered to any future nominee for the Supreme Court, and that unanimous consent is required to bring a nomination to a floor vote, in the case of any nominee who declines to take the Oath.

    The Oath runs “I solemnly swear on my honor that, if appointed, I will resign my office on the eighteenth anniversary of my appointment. I further acknowledge that to break this solemn Oath given to the Senate should be regarded as a breach of good behavior.”


    1. Justices may reasonably be assumed to be of at least slightly better moral calibre than Senators, and so there is good, if not perfect, reason to believe that the Justice will not forswear him or herself

    2. Though a vile Senate majority may, in future, choose to Harry Reid the new Rule, so that one of their side’s nominees doesn’t have to take the Oath, the advantage is very distant. It is doubtful that such a remote advantage would be worth the political cost.

    3. Impeachment gets off to at least a good start if the Justice refuses to resign, since they have acknowleged their bad behavior ab initio

    1. I might add that such a Rule if implemented and adhered to for a couple of nominations should then make it politically easier to pass an Amendment.

  19. I have a better proposal, term limits for US Congress first, then consider monkeying with SCOTUS.

    As for ‘To the contrary, I think he and his co-sponsors are acting in good faith,’ if one has paid any attention to Ro Khanna one would not think this was the case. Khanna tends to air grievances one would not think possible of a current Congressman from a state with an economy larger than most countries.

  20. Strange these Article 1 power slingers want to increase their power and decrease Article 3 power, but will run off to the Article 3 powers if states do a similar thing to them.

  21. I agree with others, congressional term limits are a higher priority to me than SCOTUS term limits. 12 years. When you hit that number your retire whether term is over or not.

    I would also like to see age limits for SCOTUS in addition to years served. Maybe 18 years for time served but cannot be appointed until 35 (same as president) and must retire at 65. In addition, the Chief Justice position should rotate every two years on some automatic basis.

  22. Seems like the most important issues are (a) lowering the tension over nominations, and (b) protecting the court from immediate, gross manipulation through packing. Having a particular number of justices or an odd number isn’t that serious, we’re dealing with it right now. So how about something like this:

    1. Justices serve for life, but the office expires with them. When a justice quits or dies, they are not replaced.

    2. Every odd year, a new position with life term is automatically created on a particular date.

    3. If it’s not filled within 90 days of being created, the position is cancelled and the cycle is skipped.

    4. An emergency provision for more positions if some kind of incident or coincidence drops the court below five members.

    Advantages: a party that gets a mandate (president + control of senate) is guaranteed a position. If the senate and prez are opposite parties, it would establish a norm that we just wait and it’s no big deal, unless (unlikely) there’s a consensus candidate.

    With typical lifespans, appointment dates, and periods where the president and senate agree, the court size would fluctuate around the current size.

  23. 1. And limitations on the service of Article 3 judges would be unconstitutional. It is a non-starter.

    2. What we really need is for the justices to start an internal precedent about retirement. Anyone over the age of 75 should really voluntarily retire, but they avoid this because often the “opposition” controls the nomination process.

    3. THE BIGGEST ISSUE INVOLVED IS THE REPEAL OF THE FILIBUSTER ON JUDICIAL APPOINTMENTS COMING BACK TO HAUNT THE DEMOCRATS. We really do not need any court restructuring because the Supreme and lesser federal courts function just fine. This is all just political posturing because the Democrats are, to use a technical term, butt hurt that Trump gets to appoint a 3rd justice in his first term and this will make a large swing in the composition of the Supreme Court.

  24. I agree that a constitutional amendment is the best route to go here. If you are going that route I would suggest, as an alternative, setting an upper age limit of 75 years for all Federal positions (Congress, Presidency, Courts, civil service). Yes, I know about the wisdom of age and I know about the limits of physical and mental health.

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