Wednesday, August 11, 2010

How Young Are You? How Old Am I?

I'm pretty sure that if I'm going to spend time thinking about Constitutional changes that aren't going to happen I'd rather think about term limits for the Supremes than about changing the 14th Amendment, so I'll send you here for the other constitutional hocus-pocus and go another round on SCOTUS, as John Sides (cautious and probably anti) and Matt Yglesias (pro) both have added thoughtful posts today that I recommend.

I'm not really changing my position overall (cautious, but interested), but I do think I've fallen into one trap, which is that I previously said that I didn't like the pressure in the current system to go as young as possible.  As I think about it, however, I'm not at all against young Supreme Court Justices.  Why shouldn't we have Justices in their 40s -- or in their 30s?  Sides (who points out that nominees have not, in fact, been getting younger) says that "It’s hard for potential nominees to be seen as sufficiently qualified for the Court" unless they're at least around 50, but why is that?  After all, James Madison (warning: glib oversimplification!) wrote the Constitution when was not yet 40 (b. 1751), so should it really be impossible to imagine someone in her 30s interpreting it? 

What I'm actually not thrilled with is the idea that one of the three co-equal branches of government is restricted in practical terms to a narrow meritocratic group of those who go to one of a handful of law schools and then groom themselves for the job by both convincing their co-partisans that they are safe votes and by never saying or writing anything controversial.  But, no, I'm not really against young Justices at all. 

Indeed, I'll note that the Framers didn't include any age threshold for serving on the bench.  I think they were correct.  Moreover, as long as we're talking Constitutional changes that aren't going to happen, I'd probably go ahead and follow John Seery's suggestion to eliminate minimum ages for Congress and the Presidency.  And lower the voting age to, oh, 12, something around there (that last one doesn't require an Amendment; states are free to lower their voting ages right now, if they want). 


  1. What I'm less than thrilled about is two branches of government being restricted in practical terms to narrow groups whose members are often lacking not only in merit, but in qualifications of any kind, including intelligence and integrity.

    This paraphrase might look glib, but I am being totally - and sadly - serious.


  2. For that matter, one need not be a citizen to serve on the Supreme Court. That fact always surprises my students, though not as much as the fact that there's no formal requirement that justices be lawyers either.

  3. Nice Replacements reference in the title.

  4. that one of the three co-equal branches of government is restricted in practical terms to a narrow meritocratic group

    Isn't this the sort of problem that will gradually solve itself? The current dynamic pushes toward a rather small-bore court. As Brown v School Board and Roe v Wade recede into the past (and even the Bork and Thomas confirmation battles recede into the past), court nominations will carry less symbolic weight.

  5. How smart are you?
    How dumb am I?

  6. If only the parties were only looking for young nominees. Alas, they want young nominees with closed minds, who will reliably decide cases to the left or the right as the years go on.

    Long service raises the stakes, increasing the pressure to find a judge with 'settled views'.

    I want thinkers, not hacks. Thinkers evolve, and that means they may move either to the right or the left.

    Term limits lowers the stakes, allowing more candidates to be considered, young and old alike.

    To my mind the interesting question considers consecutive terms. Would we want a single term system? To allow re-nomination? To allow re-nomination but only after time off the court?


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