Tuesday, August 10, 2010

Term Limits for Justices?

The topic is back in the news, in the wake of the swearing-in ceremony for Justice Elena Kagan, and comments by the always-interesting James Fallows.  Responding today, two Monkey Cagers had it out: John Sides is skeptical of reform, and Andrew Gellman is skeptical of the skepticism.  Last time this was in the news, I linked to Matt Yglesias, who supports reform.

I'm afraid I'm in the mushy middle on this one: I'm for caution before significant Constitutional tinkering, but as I said a while back, it's a mistake to oppose reform on the grounds of favoring stability when the status quo rules deliver rapidly changing results.  At that point, I was aware that tenure on the bench has been increasing over the last few decades, but as I said I'm definitely not an expert on the literature, so I was happy to read research by Justin Crowe and Christopher F. Karpowitz (cited by John Sides) which explains that increased tenure is the result of the recent disappearance of short-term (eight years or fewer) Justices.  In other words, it's not just that recent Justices have been starting a little earlier and then living a little longer as lifespan lengthens.  That said, I'm not really convinced by Crowe and Karpowitz's analysis about the likely future of short-termers.  They point out that it's certainly possible that current trends in appointees -- careerist judges who are likely to treat the Court as the best possible job and remain there as long as they can -- could change overnight.  That's true, I suppose, and they discuss plausible recent nominees with different backgrounds (such as Mario Cuomo for Bill Clinton, and Harriet Myers for George W. Bush), but it seems to me that there are good reasons to expect the current trends to continue, along with something that the don't address, which is the increasing emphasis on (a relatively young) age as a qualification.

As I said in the earlier post, what bothers me the most about the current system is the arbitrary aspect: if Justices are fairly partisan (which is fine with me), then I'm not really sure that there's any decent justification for the random distribution of deaths and retirements across presidencies.  Of course, basically this is all just good August speculation; given that in practical terms reform is basically off the table, since it would require a Constitutional amendment, and that's not going to happen.


  1. I'm like you, I'm somewhat waffling when it comes to term limits, but how about the happy compromise of a hard retirement age? Say, 70 or 75? This way, we minimise the situations like Michael Luttig who rolls off to a cushy corporate...

  2. My humble suggestion -- 18 year terms!

    Imagine every couple of years (odd ones) there are scheduled votes on a justice chair, but only one.

    If a vacancy pops up, a nomination is made, etc, but that new appointment is still up for reconfirmation (or not) as scheduled.


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