Other problems
The confirmation process
There has been a lively (if largely speculative) debate over whether the confirmation process would be more or less partisan after the term limits proposal than it has been in recent decades. Every two years, a new nominee would have to be considered and a new set of Senate hearings held; some fear the sentiment would never subside. It is true that multiple nominations in a relatively short period of time, without the other changes associated with the term limits proposal, did not depoliticize the process. President Donald Trump, for example, ended up having to fill three vacancies, and it is hard to imagine a process more steeped in politics than the one faced by current Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, and the conclusion that their ages (49, 53, and 48, respectively, at nomination) played a role in their selection is hard to resist. However, the regularity of appointments provided for in the proposal, as well as the fact that the duration of each appointment is set at 18 years of active service rather than possible decades, change the picture considerably.
Remember, 18 years is the historical average for justices. That’s more than enough time to learn the institution inside and out and make an impact. By setting a cap – a practice common to nearly all state supreme courts and the highest courts of virtually every other country in the world, whether in the form of term limits or a mandatory retirement age – we also ensure that new thinking, new understanding of our society, and fresh energy will enrich the Court’s decisions.
Filling vacancies
Critics of the term limits plan have pointed to two flaws in its structure. The first concerns the possibility of a Senate blockade. The plan is light on the role of the Senate, largely because there isn’t much to say. There have been some glaring examples of the Senate refusing to vote on a Supreme Court nominee, but the fact is that even in times of divided government (i.e., when the White House is held by one party and the Senate is controlled by the other), the Senate usually performs its constitutional function.
While one could push the Senate itself to make special rules for Supreme Court nominations or for all judicial nominees, that is about the most one could do. Recall that Article I, Section 5, Clause 2 provides that each house of Congress “may determine its own rules of procedure.” One of the Senate’s constitutional responsibilities, under Article II, Section 2, Clause 2, is to give its “advice and consent” to the nomination of “Judges of the Supreme Court.” Given this constitutional backdrop, it would be an uphill battle to craft a law that would override the Senate’s prerogative to set its own rules for its executive calendar, in which judicial nominations are submitted.
The other question related to vacancies concerns events that occur during a particular judge’s 18-year term. For example, suppose Judge X is appointed to an 18-year term but dies in a tragic car accident ten years into that term. Rather than appointing a replacement judge to a full 18-year term – a practice that would be inconsistent with the general appointment cycle – the Academy’s report proposes that the incumbent president have the authority to nominate an individual to complete the remainder of Judge X’s term (eight years in this example).
Another option would be to fill the vacancy with a senior judge. The report did not recommend this approach, however, because it would defeat the purpose of regular turnover. Some have speculated that the best people would be unwilling to serve on the court for what could be a very short period of time—even a year or two—but that seems extremely unlikely: It is a special honor to serve on a federal court, let alone the Supreme Court, so it is safe to assume that it would not be difficult to find highly qualified people willing to be considered.
Strategic behavior of judges
The final objection that deserves serious attention is the risk that judges might be influenced, subtly or otherwise, by the prospect of life after active service on the Court. Some believe they might “audition” for a future lucrative job at a private law firm or corporation. A judge appointed at age 50 would have to take senior status at age 68, which for many people is still young enough for a third act. Of course, if the shorter term encourages presidents to appoint more experienced lawyers — say, someone who is 60 when he joins the Court — that concern is greatly reduced. That judge would leave active duty at age 78, well after the age at which most law firms require their partners to reduce their workloads, and at a time when a person might simply prefer the life of a senior judge to the stressful environment of a corporation or law firm.
Added to these practical considerations is the fact that the experience of state supreme courts and supreme courts elsewhere does not suggest that this type of strategic behavior is a problem, so it can safely be ruled out as a reason not to impose term limits. Many retired judges join public commissions, law schools, or other public offices; others are simply happy to retire after a rewarding career. Some transfer their skills to arbitration and mediation. The only thing that would make this move easier is an excellent judicial career that no one can complain about.
