Tenure question hasn’t been raised in confirmation hearings since Sotomayor’s in 2009
Fix the Court is calling on the members of the Senate Judiciary Committee to ask SCOTUS nominee Ketanji Brown Jackson her views on Supreme Court life tenure and recent proposals to place limits to that tenure. Of the current nine, only Justices Sotomayor, Alito and Roberts were asked about judicial term limits during their confirmation hearings, each by Sen. Herb Kohl of Wisconsin.
“Questions about the Supreme Court’s structure and justices’ tenure are more pertinent now than at any time in recent memory,” FTC’s Gabe Roth said. “Term limits are apolitical and have proven to be exceedingly popular across the ideological spectrum, so as confidence in the court continues to wane, I expect this proposal to gather more steam. Since these hearings might be the only opportunity for the public to hear Jackson’s views on the topic, I hope senators don’t miss the chance to ask her about term limits.”
Kohl asked then-Judge Sotomayor in 2009, “Would you support term limits for Supreme Court justices, for example, 15, 20 or 25 years? Would this help ensure that justices do not become victims of a cloistered, ivory tower existence and that you will be able to stay in touch with the problems of ordinary Americans?”
Her response? Defer to Article I. “All questions of policy are within the providence of Congress first. And so, that particular question would have to be considered by Congress first.” She later added, “I think there is wisdom that comes to judges from their experience that helps them in the process over time. […] I do think there is a value in the services of judges for long periods of time.” (Sotomayor did not specify how long.)
When then-Judge Alito was asked a similar question by Kohl in 2006, he said (p. 604): “If I had been a delegate to the Constitutional Convention […], I would narrow […] the range of options that I would consider down to either life tenure or a long term of years.” Kohl asked then-Judge Roberts in 2005, and the future Chief Justice responded by saying (p. 209) that he no longer agreed with a memo he had written in 1983 that called for a constitutional amendment to limit the tenure of all federal judges to 15 years.
During the lead-up to the Roberts hearing, future chair of the Biden Supreme Court Commission Bob Bauer wrote in the Washington Post that “the president and Congress could […] seek a commitment from a Supreme Court nominee that he or she will serve a sensibly limited period of time. […] Over time, a custom or expectation would develop […], just as no president served more than two terms for almost 150 years after Washington.” This tactic would also be welcome on March 22 or 23.
Several senators on the Committee have already expressed positive sentiments towards ending Supreme Court life tenure, including:
Sen. Richard Blumenthal told the Post that “lawmakers should seriously consider term limits or mandatory retirement for the justices. Some other courts, Blumenthal noted, have similar restrictions for their judges.”
Sen. Cory Booker said, “We need to fix the Supreme Court. […] Term limits for Supreme Court justices might be one thing, to give every president the ability to choose [a few].”
Sen. Chris Coons said, “One of the real merits of that proposal […] is that you could set it up such that every presidency had a certain number of predictable Supreme Court seats.”
Sen. Ted Cruz said, “The Framers of our Constitution, despite their foresight and wisdom, did not anticipate judicial tyranny on this scale. […] Sadly, the court’s hubris and thirst for power have reached unprecedented levels. That calls for meaningful action.”
Sen. Josh Hawley said, “What if justices were not appointed for life? Or, more precisely, what if they did not serve on the Supreme Court for life? […] If they know they will not remain on the Court for an extended period of time, and that the rules they craft will shortly be applied by someone else, they may be far less likely to charge so eagerly into constitutional politics. Article III demands that judges be appointed for life, but it does not necessarily require that Supreme Court justices serve for life — provided they remain judges when not on the Court.”
Sen. Mazie Hirono said, “There’s nothing written in the Constitution about the size of the court. You can cycle circuit court judges through the courts. You can have term limits.”
Sen. John Kennedy said, “I would sure love to have the debate [over Supreme Court term limits.] I don’t know exactly how I would come down, but it’s certainly worth talking about.”
Nearly every recent Supreme Court justice who’s been asked at public events or in interviews about ending life tenure has indicated some support, if not a full-throated endorsement. A full list is available here.