Hey, That Was My Idea

Okay, I've been advocating the end of lifetime appointments for judges for a few years now. This is, admittedly, a rather extreme departure from our historical tradition of lifetime appointments, but it's not like we've just begun to politicize the judiciary. The idea that the judiciary is somehow immune from politics went out the window at least 30 years ago, and has only accelerated since Robert Bork's Supreme Court nomination was nixed in 1987.

Personally, I'm not sure whether this is a good idea for the Supreme Court, but such a change for the appellate courts (and even the district courts) might be a good idea. Norman Ornstein has now suggested this idea in today's Washington Post, and makes some solid arguments in favor of the point...

Whoa, you say. Lifetime appointments insulate the judicial branch from political influence, don't they? Not anymore. Is there anything more political than the Senate's unceasing battles over these nominations? Meanwhile, the nominees themselves have become politicized by the battles -- Supreme Court Justice Clarence Thomas will always remain bitter over how the Senate treated him during his confirmation hearings. It's been 17 years since Senate Democrats blocked the nomination of Robert Bork to the Supreme Court, and the ideological wars over the judiciary began in earnest. If the Senate can't figure out how to reach a truce in its battles over these all-important jobs, maybe the best solution is to make the jobs not quite so important.

A 15-year term would still provide insulation from political pressure; that tenure is seven years longer than any president can serve. It would allow plenty of time for a judge or justice to make a substantial contribution while diluting the efforts of any president to project his views onto future generations. It has worked admirably well in other jobs that require independence to be effective -- for example, the Comptroller General of the United States.

... Now, though, lifetime tenure has serious drawbacks. It has created a powerful temptation to presidents to pick young ideologues, skewing the balance on the bench and leveraging a president's power for decades thereafter. And lifetime tenure ratchets up the stakes of each appointment, giving opposition parties more incentive to block as many presidential nominees as possible, whatever their ideology, to leave more lifetime slots for a future president of their own party.

Moreover, lifetime tenure in the 21st century is no longer a financial incentive, but a financial drawback. Federal judicial salaries are currently barely more than a newly minted lawyer, just out of school, can earn at a major law firm. A 15-year term would limit the financial disincentive for serving on the courts -- for a younger person, there would still be plenty of time to build the nest egg to provide for a family and retirement; for an older person, it would become the final chapter of a career. Presidents would have a much wider array of talent to choose from if people in their sixties could be seriously considered for top judicial posts; many are now largely discounted because of the alternative lure of choosing younger nominees who can serve much longer.

Perhaps this idea will gather steam, but I doubt that an intelligent solution like this would solve the coming judiciary conflicts, especially since such an amendment would take forever to pass. Of course, I'm fully in favor of the GOP adopting the so-called "nuclear" option, which would effectively limit the filibuster rule in the Senate to legislation and throw the rule out the window for nominations. If you thought Congress was polarized before, just watch what happens if Stevens, Ginsburg or O'Connor leave the bench (when Rehnquist retires, they will be trading a conservative for a conservative, and liberals may not see the benefit of going to the mattresses on that nomination fight).

In the end, though, this battle helps the GOP a lot more than Democrats. Wedge issues help draw out the conservative base, and the social conservatives who came out to the polls are waiting for the chance for W. to put his stamp on the Supreme Court.