With the retirement of Anthony Kennedy, the moment we have long dreaded has arrived; we face the specter of a Supreme Court lost to the far right for a generation due to members’ lifetime tenure. As we know, the Framers intended for the courts to be able to make decisions without political concerns or pressures. But does this still make sense in today’s world? What would be an alternative?
Short-Term Solutions?
If the Democrats can retake both houses of Congress and the White House in 2020, some have proposed they could set a mandatory retirement age for federal judges so that human time capsules aren't on the bench for decades.
This would make for a good short-term solution, assuming it’s constitutional. However, if the Republicans take back power they could just as easily get rid of it.
Likewise, another idea being proposed, to increase the size of the court to 11 justices would probably result in a later Republican increase to 13. Or 15.
Did the Framers anticipate today’s political situation?
Unfortunately, Article III gives us very little to go on, so determining Original Intent from the Constition itself is a fool's errand. We must look elsewhere and the obvious resource is the Federalist Papers. In this particular case, Federalist 76 and 78; both written by Alexander Hamilton.
Regarding appointment and confirmation of Supreme Court Justices, Hamilton explains in Federalist 76 the thought process behind how justices are appointed and why their appointment is lifelong.
First, the president is assumed to be making the appointment based on this:
He [the President] would be both ashamed and afraid to bring forward ... candidates who had no other merit than that … of being in some way or other personally allied to him, or of possessing the necessary ... pliancy to render them the obsequious instruments of his pleasure.
And second, the Senate is assumed to be part of a separate but equal branch that takes its responsibilites seriously:
A man disposed to view human nature as it is, without either flattering its virtues or exaggerating its vices, will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of [the Senate’s] members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.
Obviously, this is no longer the state of affairs in Washington. We have a President who literally has no shame and a Senate that is the poster child for pliancy.
The vague nature of Article III has lent itself to a violation of agreed-upon norms that has corrupted the process and, ultimately, thwarted the will of the People.
In Federalist 78, Hamilton explains the reasoning behind lifetime appointments.
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws....
Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.
So, Hamilton reasoned, a lifetime appointment will ensure independence and since nominees would be such rare specimens it would be wise to hold onto them once they've been found.
What about precedent?
Washington set the two-term precedent for the Executive, what about the Judiciary? Appointees over the first 25 years (1790-1815) served an average of 16 or 17 years. Some, like John Marshall, a Framer himself, served for over 30 years. Another was Bushrod Washington, who I'm only mentioning because I think he has a cool name. On the other hand, Robert Hanson Harrison, the William Henry Harrison of Supreme Court Justices, was too ill to attend the court's very first session, resigned a week later and died two months after that.
I think this shows that the idea of a justice serving for decades was not a problem in the eyes of the Framers.
That being said, the process back then hadn’t been weaponized. The Framers may have anticipated a Donald Trump but they never envisioned a Mitch McConnell or a Senate full of obient quislings. We are well past short-term fixes. But what to do?
A humble proposal
I believe the only remedy is going to be amending the Constitution. Here's a framework to start a discussion.
Proposed Amendment
1. Only someone with 12 years experience as a Justice in the inferior courts and has been a citizen for fourteen years is eligible.
A nominee needs a substantial case file that can be used to evaluate temperment.
2. The term of a Supreme Court Justice expires after 10 years of service or when they reach the age of seventy, whichever comes first.
This takes away the threat of a hardline ideologue being appointed at 40 and having a deleterious impact for decades.
3. The Chief Justice will be a current Associate Justice selected by the remaining Associate Justices. The 10-year term limit would remain in force.
Perhaps the justices themselves would have better insight into who would be the best to manage the affairs of the court, thanks to their behind-the-scenes interactions with one another. They should still have to leave after 10 years as a way to reduce the amount of campaigning and palace intrigue that might go on.
4. A Supreme Court Justice cannot hold public office after vacating their seat.
Ambitions could be corrupting. Playing to the base in preparation for running for office after leaving the court would be a temptation. Someone dangling a Cabinet post or an ambassadorship to the Bahamas could be very enticing as well.
5. A Supreme Court Justice cannot become a lobbyist after vacating their seat.
Not sure how to word that. Memoirs and speaking engagments are one thing, influence peddling and lobbying are another.
6. Once seated, a Supreme Court Justice's salary and pension cannot be changed. It will also be adjusted for inflation.
Denying other branches of goverment the ability to extort (or bribe) justices is essential. A pension can help allay concerns about one's future.
7. The nomination and confirmation of a Supreme Court candidate must be completed in no more that 90 days. In the case of a vacancy occurring less than 90 days before a new Congress is seated, a reasonable effort to fill the spot will be made.
A fix for the Merrick Garland larceny.
8. Confirmation will require a two-thirds majority of the Senate.
Sort of the "one person cuts the piece of cake and the other one gets first pick" idea to help moderate ideology.
Rather than continuing the current system, something like the above amendment would hopefully encourage the selection of more moderate judges with a respect for precedent and take away the "life and death" nature of today's appointments.
My suggestion above is just that: a suggestion. But I wholeheartedly feel that an amendment is necessary and can be ratified if it is something that both parties feel won't favor either.
Thoughts?