No more lifetime judges
Contrary to the judiciary’s reputation as the least dangerous branch, judges exercise almost every executive and legislative power other than going to war. Their ability to make, transform, and distort the nation’s fundamental law is why the battle over President Barack Obama’s nomination of Merrick Garland to succeed Antonin Scalia is likely to be so brutal.
That wasn’t the Constitution’s original plan. The courts were important, but were not to supplant the other branches. Rather, judges were expected to constrain the executive and legislative branches.
Alexander Hamilton expected the judiciary to play a “peculiarly essential” role to safeguard liberties and act as an “excellent barrier to the encroachments and oppressions of the representative body.” Judges were to “guard the Constitution and the rights of individuals” from “the people themselves.”
Unfortunately, today the judiciary more often acts as a Greek chorus demanding ever more expansive and expensive government. The High Court essentially acts as a continuing constitutional convention, where just five votes are necessary to impose sometimes far-reaching amendments.
The judges who assert these vast powers enjoy lifelong immunity from accountability. Scalia’s death gives Obama an opportunity to shift the Supreme Court dramatically leftward.
Unless the Senate stops him, as it should. The Constitution gives the Senate the power to advise and consent. That body is empowered to say no.
The most important qualification for judicial office is philosophical. Put simply: Does the nominee believe the Constitution means anything apart from the jurists’ personal preferences? If not, then the Senate should reject the nomination.
Nevertheless, no one really benefits from politicizing judicial nominations and refusing to fill vacancies for partisan reasons. There is an obvious answer: Appoint jurists for a set term in office, perhaps 10 years. Allow them to be reappointed once, though reconfirmation would be required. No longer would the state of American medicine determine which president gets to fill the high court.
Jurists still would be independent. If they hope for reappointment they might be more hesitant to sign onto controversial opinions. But then, that also means they would be less likely to rewrite the Constitution to suit their personal preferences.
While term limits would not guarantee better jurisprudence, a larger number of appointees would increase the likelihood of at least a few advocates of an active court dedicated to enforcing the Constitution’s liberty guarantees.
Finally, fixed terms would moderate battles over Supreme Court appointments. After 10 years a new president could appoint and a new Congress could confirm someone else. Indeed, with staggered appointments every president would have an appointment every couple of years.
Judicial terms would require a constitutional amendment, but fixed terms for jurists is the best way to both preserve independence and impose accountability.
Doug Bandow is a senior fellow at the Cato Institute.