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Everyone's Talking Terms: The Case for Ending Life Tenure at SCOTUS Continues to Grow

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WHAT SUPREME COURT JUSTICES THINK ABOUT LIFE TENURE

White House Memos Offer Opinions on Supreme Court [John Broder and Carolyn Marshall, N.Y. Times, 7/30/05]

[I]n 1983, Mr. Roberts addressed a proposed constitutional amendment setting a 10-year term of office for federal judges. The Justice Department opposed the measure on the ground that life tenure was critical to judicial independence. Mr. Roberts did not disagree but noted that the framers had adopted life tenure at a time when life expectancy was significantly shorter. He then made an argument in favor of limited terms.

“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,” Mr. Roberts wrote. “It would also provide a more regular and greater degree of turnover among the judges.” 

Justice Breyer says he could support certain SCOTUS term limits [Stephanie Francis Ward, ABA Journal, 1/8/16]

Justice Stephen G. Breyer doesn’t oppose the idea of U.S. Supreme Court term limits, providing that they would be lengthy. Someone asked Breyer about 18-year term limits for U.S. Supreme Court members while he was speaking Thursday at an Association of American Law Schools conference. […] “If it’s a long term … I’d say that was fine,” said Breyer, who is 77 years old and took his seat on the Supreme Court in August 1994. “In fact, it would make my life simpler.” 

WHAT AVERAGE AMERICANS THINK ABOUT LIFE TENURE

Fix the Court’s “State of SCOTUS Poll” [Conducted by Global Strategy Group and Public Opinion Strategies, 1,028 registered voters, 5/16-22/18]

  • The Supreme Court should be subjected to as much public scrutiny as the President and Congress: 76% agree vs. 23% disagree
  • Supreme Court justices are in touch with people like me: 26% agree vs. 68% disagree
  • Do you support abolishing the practice of lifetime appointments for Supreme Court justices and instead allowing justices to serve only a fixed term? 68% agree vs. 26% disagree
  • Do you support abolishing the practice of lifetime appointments for Supreme Court justices and instead allowing justices to serve only a fixed term of 18 years, staggered in a way that a new justices is appointed every two years? 68% agree vs. 27% disagree

Majority of Voters Back Term Limits for Supreme Court Justices [Eli Yokley, Morning Consult, 7/18/18]

A majority of voters support term limits for Supreme Court justices – suggesting Americans don’t want the high court’s makeup to be permanent. […] The latest Morning Consult/Politico poll [found] 61 percent of voters support term limits for Supreme Court justices, including two-thirds of Democrats and 58 percent of Republicans. Twenty percent overall oppose such limits, according to the survey of 1,991 registered voters. 

WHAT PUNDITS AND PROFESSORS HAVE SAID ABOUT LIFE TENURE SINCE JUSTICE KENNEDY’S RETIREMENT ANNOUNCEMENT

“It’s time for term limits for Supreme Court justices” [New America Foundation Senior Fellow Lee Drutman, Vox, 6/27/18]

In the weeks and months to come, the battle over appointing a new Supreme Court justice will be very, very nasty. Whoever replaces [Anthony Kennedy] could serve on the Court for 40 years. That’s too long. It makes the stakes too high. […] So here’s a simple idea to dial down some of the destructive warfare of the Supreme Court confirmation process: term limits for Supreme Court justices.

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.

How to fix the Supreme Court [Ezra Klein, Vox, 6/27/18]

We need to deescalate Supreme Court fights. The most obvious way to do that is to limit terms. […] Implementing a reform like this would be a step toward repairing and normalizing a process that is now dangerously broken, infuriatingly random and distorting both our politics and the judges we choose to interpret our laws.

What is back in play with Kennedy retiring? [FIU Law Prof. Howard Wasserman, PrawfsBlawg, 6/27/18]

If Republicans keep the Senate in November and Trump remains unpopular, might Thomas retire next year (there were rumors he might go this year)? That would give Trump the same number of SCOTUS appointments in one term as Reagan had in two and more than Obama, Bush II, or Clinton had in two. The 18-year term limits proposals look increasingly sensible.

How to end the judicial confirmation wars [Former White House Counsel Bob Bauer, The Atlantic, 7/1/18]

[Term limits] could have multiple benefits. It would drain away some of the political tension, if not eruption of crisis, around each nomination. The retirement of an Anthony Kennedy might not shake the country to its very foundations. Vacancies would remain consequential, but with more regular turnover and each president assured of a pick, there would be less drama.

This cap on terms could also nudge the court toward a greater posture of humility. Justices serving for only a defined term, their ranks regularly refreshed, might have a more reliably modest sense of their mission.

IMHO: It’s time for SCOTUS term limits [Jim Braude, WGBH, 7/2/18]

It’s clear that lifetime appointments to the nation’s highest court are not working for the American people. […] Other than declaring war, there is no farther reaching [presidential] power than the ability to nominate justices to the Supreme Court, but it’s time to do away with lifetime appointments – just ask Margaret Marshall, former chief justice of the Massachusetts Supreme Judicial Court. [MARSHALL SOT:] “If you’re going to appoint a Gorsuch or a Ginsburg, what people worry about is that you’re stuck with them for 40 or 50 years.”

Even Justice Stephen Breyer told me he could get behind a term limit. [BREYER SOT:] “I would say it [should be] a long tenure […] because you don’t want a person in that job thinking about his next job.

Why Supreme Court justices serve such long terms [Steve Mazie, The Economist, 7/4/18]

With Americans living more than twice as long as they did 150 years ago, a life term means that justices typically count their stints in decades. In 2006 two law professors, Steven Calabresi and James Lindgren, noted that justices serving before 1970 served an average of 14.9 years, while those serving after 1970 have served 26.1 years. The five most recent justices to leave the court have served an average of 27.5 years.

[…] Justices’ tendency to retire when an ideologically friendly president is in office – as Anthony Kennedy seems to have done – only makes the court look more like a politicized institution ripe for manipulation. […] It’s no wonder, then, that justices who shape America for decades on end come to ‘feel themselves independent of heaven itself.’

It’s time to make changes to Supreme Court nomination process [Andrea Christensen, BYU News, 7/9/18]

“We have reached a point where the process does not work well in achieving an outcome that serves the interests of the Court and the nation,” said [BYU Prof. Richard] Davis, [adding] that the process has trended in a “more troubling” direction, becoming “more partisan and more divisive. One [possible change] is to limit the terms of the justices so there is a predictability to the process.”

[…Another is to c]reate a bipartisan commission responsible for making recommendations to the president. “The judiciary should not be held hostage to the ideological warfare between Republicans and Democrats,” he said.

The case for term limits on the Supreme Court [Columnist Randy Schultz, South Florida Sun-Sentinel, 7/10/18]

A reform movement has developed among liberal and conservative scholars. Their plan would impose 18-year term limits on Supreme Court justices. Terms would expire every two years, in the odd years of a president’s term.

[…T]erm limits actually could encourage the selection of older justices. Both parties’ current preferred candidate is someone in his or her 40s or early 50s, to ensure as long a tenure as possible. Neil Gorsuch was 49 when Trump chose him. Kavanaugh is 53. Without a lifetime appointment, youth could matter less than experience. […] Polls show wide, bipartisan support for court term limits. The dramas that enthrall Washington seem more like noise to most Americans. Take the Supreme Court away from the partisan extremes.

Pros & cons of Supreme Court justice term limits for you to consider [Joseph Lyons, Bustle, 7/10/18]

Pro: Judges of all ages might be nominated. Right now most presidents nominate younger people to the Supreme Court so that they will stay on longer, have more influence, and ensure a liberal or conservative tilt to the court. With term limits, age wouldn’t be such an issue and named justices could even have more experience.

As Chapman University’s Dr. John Eastman tells Bustle it could change the profile of those named to the Court. “It would decrease the incentive to name really young judges to the bench. If there was an 18-year term, you would get the same length of service from a 45-year-old as from a 60-year-old nominee,” Eastman says.

Supreme Court nominations have become too partisan [Guest columnists Kelcey Patrick-Ferree and Shannon Patrick, Iowa City Press Citizen, 7/12/18]

The combination of rarity and unpredictability of [Supreme Court] vacancies encourages rancorous partisanship when those vacancies occur. None of this is healthy for our democracy.

When problems of selection and succession arose in the legislative and executive branches, we acted by adopting the 17th and 25th Amendments. The time has come to introduce reforms to the judicial branch. […] One proposal […] was for staggered 18-year Supreme Court terms. The partisan bickering and panic at every vacancy would be much reduced, and the term is long enough to maintain judicial independence, a priority we share with the framers.

Supreme Court justices should have term limits [Wichita State Prof. Neal Allen, Wichita Eagle, 7/13/18]

Supreme Court nominations have become a way to preserve a party’s policy positions even after those policies cannot command a majority of voters in national elections. This practice is good for the party that has the presidency when a vacancy occurs, and wonderful for relatively young lower-court judges who have a record that predicts ideological purity on the Court.

But it is bad for our democracy in general. It creates incentives for Senate leaders to use all means available to block nominees from the president of the other party, and to then push through the most conservative or liberal nominee possible. The norms of democracy and civility have not withstood such pressure.

One way to lower the temperature in Washington would be to lower the stakes of Supreme Court nominations. […] If either Kansas senator would use their leverage in the current 50 Republican/49 Democratic Senate, they could at least secure a pledge from majority leader McConnell to schedule debate after the November elections on nomination reform. It is in their long-term interest, and the interest of Kansans in general, to reduce the level of partisanship on judicial nominations.

The age of the justices [San Diego Law Prof. Mike Rappaport, Law and Liberty, 7/13/18]

[I]n this hyper-partisan world, where the justices time their retirements to allow a President of their party to replace them, the justices might be reluctant to step down while a President of the opposite party served. […] So what should be done about this? The first step is to recognize that we have a problem. The next is to consider solutions. The best solution, in my view, is to have 18-year terms for the justices, with a new justice to be selected every two years. This is a widely supported proposal by people on both sides of the political spectrum. It would not only address the age issue but also the problem of justices stepping down so as to determine who may appoint their replacements and of some presidents receiving more appointment opportunities than others.

We are all Supreme Court skeptics now [Ross Douthat, New York Times, 7/14/18]

The least accountable branch of government, the Supreme Court, has fallen into the hands of an aggressively counter-majoritarian faction. […] Term limits for Supreme Court justices are one obvious example of a neutral reform that might weaken juristocracy.

Term limits could fix the dysfunction around Supreme Court confirmations [Northwestern Law Prof. James Lindgren and U. Chicago Sociology Prof. Ross Stolzenberg, L.A. Times, 7/18/18]

As much as justices appear to enjoy these extended careers, their unlimited terms are dysfunctional for the judicial system, the court itself, the presidency, and Congress. We need term limits for the court.

Right now, justices race against senility, physical decrepitude and death itself in order to hand the power to appoint their successor to a specific party. […] Term limits of 18 or 24 years for Supreme Court justices would fix many of these problems.

Democrats need a Plan B for the Supreme Court. Here’s one option. [Yale Law Profs. Ian Ayres and John Fabian Witt, Washington Post, 7/27/18]

Democrats ought to consider […] ending the lifetime terms for Supreme Court justices. A statute might designate all future Supreme Court seats as 18-year terms, with justices sitting on the court by designation, followed by life tenure on the lower federal bench. The constitutionality of such a move is disputed, but it would be worth trying. The vagaries of justices’ deaths and retirements should not throw American democracy into tumult. Even better, Congress should endorse a constitutional amendment (already supported by many prominent constitutional lawyers) establishing term limits for all future justices.

A few political changes that just might help our country [Univ. of Kentucky Prof. (ret.) Marty Solomon, Lexington Herald-Leader, 7/27/18]

The Supreme Court has become too politicized. […] To minimize that problem, we could have a committee, appointed by Congress with an equal number of Democrats and Republicans that would nominate potential Supreme Court judges from which the president must select. This might result in selection of a judge who has less of a political view of the job than we now have.

Finding common ground over Supreme Court term limits [Boston Herald Columnist Michael Graham, CBS News, 8/5/18]

The theory [on term limits] is that when you have people appointed by, say, President Ford or H.W. Bush, there have been numerous election cycles since then and the philosophy of the people, the will of people, may have been different 30 or 40 years ago; in fact, it probably was. And so the court should reflect, at some level, the thinking of the people, where sovereignty comes from.

Supreme Court Term Limits Would Fix the Confirmation Debacle

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