How to end some of the destructive warfare of the Supreme Court confirmation process

Lee Drutman
Supreme Court Nominee Judge Neil Gorsuch stands with U.S. Vice President Mike Pence on Capitol Hill in Washington, U.S., February 1, 2017.
Joshua Roberts | Reuters

President Donald Trump now has a nominee for the Supreme Court, Neil Gorsuch. Expect the battle over his confirmation to be bitter, ugly, nasty, and every other synonym you can find to describe the worst elements of our current politics. After Republicans held up the nomination of Merrick Garland for a year, Democrats are ready to hit back just as hard.

The politics of Supreme Court nominations are extra-ugly — not just because of polarization but because the stakes are so high. Unlike every other democracy in the world, here in the US we have lifetime appointments for our Supreme Court. This means that whoever gets appointed could serve for 30 or more years — a tenure that is becoming more and more the norm.

Here's an idea to abate some of the destructive warfare of the Supreme Court confirmation process: Term limits for Supreme Court justices.

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Term limits would make the Supreme Court more responsive and predictable

The idea of term limits for Supreme Court justices (10, 12, or 18 years are the most common proposals) has been floating around for decades. But the increasingly contentious nature of the confirmation process should give this proposal new urgency.

For one, it would significantly decrease the likelihood of another unexpected departure, like the one caused by Justice Scalia's death almost a year ago now. Scalia was appointed in 1986. He would have been term-limited out long before his passing. In these partisan times, justices are staying on the bench longer, not wanting to leave unless they can be replaced in a political environment that ensures a replacement on the same side. Which will make them more likely to die on the bench.

Moreover, if justices were staggered in their terms, everyone in Washington would know they'd have another opportunity to change the Court again soon enough. This regularity could also move toward more of a norm of fair play.

Instead of this predictable changeover, we have a system where, as Norm Ornstein compellingly puts it, "the policy future of the country depends as much on the actuarial tables and the luck of the draw for presidents as it does on the larger trends in politics and society."

Longer and longer terms also mean that justices increasingly lose touch with the world outside the Court. This is a point that Justice John Roberts made in 1983: "Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence." Roberts also warned, "The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches."

The Economist magazine has also agued that higher turnover would make the Court more responsive:

Breathing new life into the nation's highest court more often — even if it does not make the tribunal any less political —would bring more dynamism to the judiciary, jog the justices' decision-making patterns and narrow, even if only slightly, the yawning gap between the enrobed ones and everyday citizen.

There's also something fundamentally anti-democratic about lifetime appointments. Republican presidential candidate Mike Huckabee made this point when he called for Supreme Court term limits last year:

Nobody should be in an unelected position for life. If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public service.

Yet, Gorsuch, age 49, could possibly serve 40 years on the bench. Plenty of people live to 89 these days.

The public largely agrees on the value of term limits for Supreme Court justices. A Reuters poll last year found widespread support for term limits. Sixty-six percent of Democrats and 74 percent of Republicans wanted 10-year terms for justices, and 80 percent of those identified with the Tea Party–supported term limits.

While the most direct way to enact term limits would be a constitutional amendment, that's obviously a long shot in today's politics.

A more likely way to accomplish this was suggested by Robert Bauer in 2005: that the president agree not to nominate anybody who wouldn't agree to serve a limited term and the Senate agree not to confirm who doesn't agree to serve a limited term. As Bauer wrote:

The president could announce such a commitment when he introduces the candidate to the media. The Senate Judiciary Committee could ask the nominee about his views on longevity and also seek a commitment, even to a range of years. Any justice who hopes that with the passage of time such an exchange would be forgotten would likely be disappointed. Over time, a custom or expectation would develop. No law would be necessary to assure that justices act in the socially accepted fashion, just as no president served more than two terms for almost 150 years after Washington.

Understandably, Republicans have no real incentive to agree to this compromise. If Democrats filibuster Gorsuch, Republicans can get rid of the filibuster for Supreme Court confirmation, and use their narrow majority to put Gorsuch on the bench.

But the short-term victory comes at a price: it further escalates the war over the judicial branch. At a time when American institutions seem increasingly fragile, a compromise like term limits for Supreme Court justices would be a much-needed vote for long-term stability.

Commentary by Lee Drutman, a writer at Vox.

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