Do you agree that 18-year terms are long enough to sustain judicial independence and respect for separation of powers?
Would you appreciate the merits of a regularized system for selection of Supreme Court justices?
If so, you can become part of the change that you seek.
Consider the regularity and accountability for our other national offices.
Members of the House must be evaluated by voters every two years. Presidents can stand for re-election only once. While Senators serve for six years, they would need to win three consecutive elections to reach the 18-year term limit proposed here for Supreme Court Justices.
The 18-year term limit is not a new idea, although it has not received the attention that it merits.
Former New York Times court analyst Linda Greenhouse has noted “impressive” tenure reform support from “across the ideological spectrum.”
The key is to distribute the 9 Justices so that, as the plan is phased in, each president will be able to nominate a Supreme Court justice every two years.
Since Reconstruction, only President Carter did not have the opportunity to nominate a single justice.
Yet, some presidents have placed several justices on the highest court in a single term: Taft, five; and Harding, four (in less than three years).
How do you feel about having one of the most narrowly elected presidents in American history being in a position to name potentially four new Supreme Court justices while being in the executive office for less than two years?
Donald Trump already has Justice Gorsuch on the bench.
While Republicans still control both houses of Congress, three justices will reach the four score threshold before the 2018 elections are held: Ginsberg, 85; Kennedy, 82; and Breyer, 80.
This is not an issue of ageism or of partisanship.
Older justices have much to offer with experience and elder wisdom. The concern here is how long any official should serve beyond public accountability, and how much power a president of any party should have to affect our nation for decades beyond his or her own term.
In my column of July 14, I indicated that uncertainty of when vacancies occur intensifies partisan battles and puts a premium on nominating young candidates.
The last six Republican nominees averaged 50 years of age at the time of appointment; Gorsuch, in 2017, is 49).
An 18-year Supreme Court justice term, proposed by legal scholars, has the beauty of simplicity, once established.
It would be phased in with the initial designated president naming one Supreme Court justice every two years (which could begin with Donald Trump for his second two years, January 2019 – January 2021).
If there are no resignations, the longest serving justice would move to “senior status,” and the nine most recently appointed would be the active Supreme Court.
The “senior status” category already exists for the 870 federal judges, carrying compensation and limited, defined work.
Moving all of the federal judges to this staggered appointment process will be a topic for another column, especially in light of the huge — and expanding — significance of the district and appellate courts.
For now, the question is whether the phase in of the 18-year Supreme Court terms will require a constitutional amendment.
Most Americans believe that Article III guarantees Justices will “serve for life.” It actually stipulates “during good Behaviour”(sic).
Over the years, Congress has passed a number of judiciary reform acts that may suggest that the 18-year phase-in can be accomplished legislatively?
Some legal scholars believe it can, especially with active voter support.
In 1776, Tom Paine did more than rally Americans for independence.
“Mr. Common Sense” was ahead of his time with his strong democratizing views (including a call for a unicameral national legislature based on population representation, and the avoidance of a single executive).
The democratizing spirit of ’76 and Paine can be realized through reforms of our antiquated judicial selection and service practices, if citizens and leaders rally for changes.
More than one hundred years ago, Theodore Roosevelt responded to critics who said he could only act when there was explicit authorization in the “original” Constitution. TR said that the people who drafted the Constitution did a marvelous job for their time.
But circumstances change with years, and, as president, he believed that he could act on behalf of the people if he were not explicitly prohibited by the Constitution.
If he were restricted, but felt that actions were for the public good, he would call on citizens to support changes in the Constitution.
As E.L. Doctorow noted, constitutions can be good things, but they are “worthless pieces of parchment” without the active support of the people.
In 2017, common sense calls for judiciary reform in the name of democracy, and to better insure the elevation of the many over the few.
