The Sunflower

Allen: Supreme Court justices should have term limits

Life tenure for Supreme Court justices, combined with increasing partisan polarization, is a toxic combination that is poisoning our democracy.

It is time to find a better way that preserves judicial independence while reducing the level of conflict over nominations.  A move to a non-renewable 18-year term is a one way to reduce the stakes of confirmation battles, while preserving judicial independence.

Soon after Associate Justice Anthony Kennedy announced his resignation, President Donald Trump said “We have to pick a great one, we have to pick one that’s going to be there for 40 years, 45 years.”  While this statement will likely be a talking point for Democrats who oppose Judge Brett Kavanaugh, Trump’s 53-year-old nominee for Kennedy’s seat, it also accurately describes the way Supreme Court nominees are currently chosen.

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, as shown by the unwillingness of Senate Republicans to grant President Obama’s nomination of Merrick Garland a vote.

One way to lower the temperature in Washington would be to lower the stakes of Supreme Court nominations.  Judicial independence does not require a Justice serve as long as they live (or decide to retire after decades of service), but only that they are not susceptible to removal by a president or Congress.

Eighteen years is not the only number that would work, but it would have the advantage of ensuring that every President would get at least one appointment during their term.  Thus we would avoid situations like in Democrat Jimmy Carter’s only term or Republican President George W. Bush’s first term, where a democratically-elected President had no appointments.  A long, but defined term would also increase the likelihood that qualified potential appointees in their 60s would be considered.

The extreme partisanship of our current nomination politics makes such a proposal highly unlikely to even get a vote in either house of Congress, let alone enough support to begin the necessary process of constitutional amendment. But de-escalation must start somewhere, and ideally with the actions of a president or senator.

Kansas Senators Pat Roberts and Jerry Moran, while loyal Republican partisans throughout their careers in elected office, are ideal candidates to start a conversation on reform of the Supreme Court.

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