The resignation of Sandra Day O'Connor from the Supreme Court means the rest of the summer will be spent in a deeply acrimonious debate about the court's direction.
A key reason Supreme Court appointment fights are so intense is that they are made for life. This will be the only opportunity anyone will have to get it right. A mistake or error of judgment might still be with us 30 or 40 years from now.
Historically, people were appointed to the Supreme Court relatively late in life — as a capstone to long careers in law or public service. Today, there is a much greater effort to appoint relatively young justices so they will spend as much time there as possible. There is also greater pressure for justices to avoid retiring until severe physical infirmity demands it. Who doubts Chief Justice William Rehnquist wouldn't rather be doing something else right now, given his age, tenure and health?
Because the court has become so politicized, many justices now time their retirements to suit their politics, often delaying retirement until a president of their party or philosophy is available to nominate their replacement. Given that three of our last four presidents served two terms, this can often force justices to hang on far longer than they would rather have done. Justice O'Connor, for example, probably would have retired last year if it hadn't been an election year.
For these reasons, tenure on the court has increased over time and turnover has fallen. According to Northwestern University law professors Steven Calabresi and James Lindgren, since 1971 the average justice's tenure has increased from 12.2 years (1941-1970) to 25.6 years. The average age of a justice leaving office has risen from 67.6 years to 78.8 years between the same periods. And the average number of years between court appointments has almost doubled from one every 1.67 years to one every 3.27 years. The current makeup of the court is one of the longest in history, lasting more than 10 years, since Justice Stephen Breyer's 1994 appointment.
Even two-term presidents cannot be assured they will have a chance to appoint anyone to the Supreme Court. Some presidents have been lucky enough to get many appointments, while others have had none. William Howard Taft, just a one-term president, made five appointments, plus a chief justice. He later became chief justice himself. (Appointed by Warren Harding, Taft was by all accounts a much better chief justice than a president.) But James Monroe, who served two terms, only appointed one justice. Four presidents made no appointments, though Jimmy Carter is the only one to serve a full term without doing so.
For these and other reasons, growing numbers of legal scholars have concluded life tenure for the Supreme Court should be abolished. They note only the Rhode Island state supreme court has life tenure and no other democratic nation has it. In lieu of life tenure, they either limit terms to a fixed number of years — as is done with our presidency — or impose mandatory retirement at a certain age.
The Founding Fathers quite rightly wanted to insulate the court from partisan politics and thought life tenure would achieve this purpose, well expressed in Federalist No. 78, by Alexander Hamilton. Of course, the Founding Fathers also saw no need to limit presidential terms. But Americans generally support the eight-year limit adopted in the 22nd amendment to the Constitution, and according to a 2004 poll 60 percent say it is time to limit court terms as well.
Lately, something of a consensus has developed around a constitutional amendment to limit justices' terms of 18 years, staggered so there would in theory be an opening every two years. This means every president serving a full term would likely make two appointments to the Supreme Court.
I believe elimination of life tenure, through this scheme or another, would greatly reduce the intensity of Supreme Court appointment battles because the stakes would not be so high. Both sides would know if they failed this time around, they would probably have another chance within two years.
If justices are prohibited from reappointment, there is no reason to believe limiting them to 18 years, longer than most justices have served historically, will make them any more susceptible to political pressure than at present. Members of the Federal Reserve Board, another institution that demands insulation from politics, have always served 14-year terms and this has been sufficient to ensure their independence.
Bruce Bartlett is senior fellow with the National Center for Policy Analysis and a nationally syndicated columnist.