WHATEVER YOUR opinion of the late Justice Antonin Scalia’s tenure on the Supreme Court, you cannot fail to be impressed by its length: nearly 30 years. You also may be dismayed at the partisanship that immediately consumed the discussion of replacing him. Democrats and Republicans alike brazenly speak not of preserving the court’s impartiality and legitimacy, but of a chance to tilt its rulings in their favor — and the dire consequences of failing to seize that opportunity. As a result, the process of appointing a new justice is paralyzed, with potentially destabilizing implications for both politics and the law.
The two phenomena — the justices’ life tenure and the dysfunctional politics of judicial nominations — are connected. There are many reasons for the polarization of U.S. politics, of which the breakdown in Senate confirmations is a symptom. But it is apparent that mechanisms the Constitution relied on to strike a balance between democratic accountability and judicial independence are failing, and that one of those mechanisms in particular — life tenure — is part of the problem. What’s left of the country’s political consensus is cracking under the pressure of a choice whose repercussions are widely viewed as both momentous and possibly irreversible for 30 or 40 years.
To be sure, the Supreme Court has always been a political institution populated by political beings. But it has never been simply an instrument of the politicians who appoint it, as illustrated by the many cases in which justices disappointed “their” parties. Life tenure has bolstered the judiciary’s “firmness and independence,” just as Alexander Hamilton predicted in Federalist No. 78 that it would.
However, he wrote those words in 1788, when average life expectancy was less than 50 years, and long before the court assumed its role as arbiter of so many deeply contentious national issues — from abortion to environmental regulation to civil rights. In theory, the court could relieve the pressure on the confirmation process by shedding its modern responsibilities. This is certainly what Justice Scalia and like-minded colleagues said they were trying to do. Their limited success after three decades suggests that a powerful, active federal judiciary is here to stay and with it the incentive to stock the judiciary with party activists, the younger and fitter the better.
A likelier way to lower the stakes, then, would be to fill Supreme Court vacancies not for a lifetime but for a finite term. Many European high court judges face mandatory retirement at 70. Judges on New York state’s highest court serve for 14 years. The FBI director serves a single 10-year term. Whatever the number, it should be significantly longer than either a Senate term or a presidential one. But if it were shorter than “indefinitely,” the political drama over every vacancy would not be quite so fevered.
The first step to a more stable, more legitimate federal judiciary might be the paradoxical one of allowing politicians to shake up the courts more often than they can now.