by Ken Bell

The incipient contretemps over the naming of a successor for Supreme Court Justice Sandra Day O’Connor has mesmerized the pundit class. Barrels of ink and billions of bytes have been consumed even before President Bush has presented the Senate with a nominee. It is likely that the volume and intensity of the verbiage will increase throughout the dog days to come. One opportunity that should not be lost amid the sturm und drang is the chance to evaluate the role and organization of the court from a broader philosophical perspective.
Two interesting recent articles, one from the National Center for Policy Analysis’ Bruce Bartlett, the other from Ann Althouse writing in the New York Times, address two of these broader systemic questions about the Supreme Court that ought to be debated.
In “‘Electing Justice’: The People’s Court”, Althouse reviews “Electing Justice: Fixing the Supreme Court Nomination Process,” by Richard Davis, professor of political science at Brigham Young University. Davis contends that the system is broken and “argues that the process of selecting Supreme Court justices, originally intended as an elite interplay between the president and the Senate, has become so politicized that we ought to cast off the remnants of elitism and simply hold elections for justices.”
“But,” Althouse asks, “what, exactly, is broken? Davis describes how the press exhaustively investigates each nominee, and how interest groups pressure the president and senators and try to influence the public. The public, for its part, has come to believe it has a legitimate opinion about who is qualified to serve on the Supreme Court. But why is any of this a problem? In arguing for the election of justices, Davis contends that the various political players, seeking advantage and influence within the structure laid down by the Constitution, have changed the procedure, and that ‘the formal outline of the process should conform to what the process actually has become.’
“Yet Davis only dimly envisions how an electoral scheme would work. He notes that states have judicial elections, but he does not acknowledge the widespread belief that the federal judiciary is superior to the state courts, or the utter novelty of any sort of nationwide voting procedure in the United States. (The president is chosen by an aggregation of state-by-state elections.) Where would the candidates come from? Davis suggests the president could nominate a slate of candidates, and he imagines the Senate holding hearings and issuing reports. But what would the campaigns look like? And what would stop these elections from degenerating into referendums on, say, abortion?
“One searches vainly in the pages of this book for any discussion of the changes elections might work on the Court’s own conception of its role. It is already accused of being too political. Currently, at least there is an effort to appoint highly qualified jurists who will uphold the rule of law. Even if political ideology underlies the process, the nominee is still generally someone steeped in the legal culture who is going to profess faith in legal principles. Electing justices would not just change the selection phase, it would reshape how justices thought about their role. What would happen to the culture of law once the justices had their own constituents?”
In essence, Althouse argues that Davis has failed to make even a prima facie case for his radical proposal. “Perhaps there is no problem to be solved. Perhaps we need only learn to love the process that practice has created. Maybe the politics that have crept into the procedure over the years have worked an improvement on the framers’ elitist plan.” Worse, the likelihood is that the alternative Davis envisions would exacerbate rather than remedy the ‘problem’ he perceives. “Change the process to make it even more political than it now is, however, and matters would likely drift too far in the wrong direction. Justices might become so politically responsive that we would wonder why we should have them at all. Why tolerate nine elected officials with life tenure — or 18-year terms, according to one of Davis's proposals — reviewing legislation produced by larger bodies of more recently elected officials? If we really thought constitutional formalities needed to change to reflect real practice — Davis’s bedrock assumption — we would have to argue for the abolition of judicial review altogether.”
In “Life Tenure and the Supreme Court”, the NCPA’s Bruce Bartlett addresses the question of politicization of the court from a different angle. “A key reason for the intensity of fights over Supreme Court appointments is that they are made for life. This will be the one and only opportunity anyone will have to get it right. A mistake or error of judgment might still be with us 30 or 40 years from now.
“Because the court has become so politicized, many justices now time their retirements to suit their politics, often delaying retirement until a president of their party or philosophy is available to nominate their replacement. Given that three of our last four presidents served two terms, this can often force justices to hang on far longer than they would rather have done.” Indeed, he suggests, Justice O’Connor “probably would have retired last year if it hadn’t been an election year.”
Because of this politicization, Bartlett argues, “tenure on the court has increased over time and turnover has fallen. According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average tenure in office for a justice has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice upon leaving office has risen from 67.6 years to 78.8 years between the same periods. And the average number of years between appointments to the court has almost doubled from one every 1.67 years to one every 3.27 years.” And in fact the present court would have set a record for the longest unaltered court in American history if no justice had resigned (or perished) this year – and will still break the previous record if the battle for O’Connor’s replacement extends past the start of the term in October, since her resignation becomes effective only upon the naming of a successor. (No new justice has been named since Clinton’s appointment of Justice Stephen Breyer in 1994.)
In consequence, writes Bartlett, “growing numbers of legal scholars have concluded that life tenure for the Supreme Court should be abolished. They note that only the Rhode Island state supreme court has life tenure and no other democratic nation has it. In lieu of life tenure, they either limit terms to a fixed number of years — as it is with the presidency — or impose mandatory retirement at a certain age.”
Bartlett anticipates the most likely objections to this proposal and offers some preliminary refutation.
“The Founding Fathers quite rightly wanted to insulate the court from partisan politics,” he admits, “and they thought that life tenure would achieve this purpose, well expressed in Federalist No. 78, written by Alexander Hamilton. Of course, the Founding Fathers also saw no need to limit presidential terms. But Americans generally support the 8-year limit that was adopted in the 22nd amendment to the Constitution, and according to a 2004 poll 60 percent say it is time to limit court terms as well.”
But it isn’t merely that the question polls well among the public. There is also an “consensus [that] has developed around a constitutional amendment that would limit justices to terms of 18 years, staggered so that there would in theory be an opening every two years. This means that every president who serves a full term would likely have two appointments to the Supreme Court.” (One wonders what would happen to the members of the present court. Would they be allowed to serve until they retire or die? Would they each be allowed to serve a maximum of eighteen more years before the staggered terms kick in? Should they all be compelled to step down immediately, with Bush appointing 9 justices with terms of 2,4,6,8,10,12,14,16 and 18 years respectively?)
Despite such outstanding questions, however, Bartlett expresses the conviction that the “elimination of life tenure, through this scheme or another, would greatly reduce the intensity of Supreme Court appointment battles because the stakes would not be so high. Both sides would know that if they failed this time around, they would probably have another chance within two years.
“If justices are prohibited from reappointment, there is no reason to believe that limiting them to 18 years, longer than most justices have served historically, will make them any more susceptible to political pressure than they are now. Members of the Federal Reserve Board, another institution that demands insulation from politics, have always served 14-year terms and this has been sufficient to ensure their independence.”
Two interesting debates, with potentially extraordinary long term consequences. They deserve our considered thoughts.