By Bryce Wachtell (PO ’21)
The widespread coverage of Brett Kavanaugh’s confirmation hearing has brought the Supreme Court nomination process to national spotlight once again. It appears that with every justice nominated to the highest court, scrutiny increases and polarization grows. From accusations as grave as Anita Hill’s testimony regarding now-justice Claremont Thomas, to those as frivolous as rumors regarding Elena Kagan’s sexuality, no stone tends to be left unturned, and anything incriminating becomes a political weapon, for better or worse.
Historians and legal scholars recognize the detrimental effects that stem from a more politicized Supreme Court. the United States has drifted far from Alexander Hamilton’s words in Federalist 78, when he wrote “…the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” The Court is more political than ever. But, while Americans grovel over just how polar it is, the real issue lies in how randomly political it has become.
As David Leonhardt pointed out in the New York Times last month, “Jimmy Carter was unable to make a single nomination to the court because no justice died or retired during his four-year presidency. Richard Nixon filled four seats during his five-and-a-half years as president.” Indeed, in recent decades, Republicans have benefited from this game of chance. Though this, importantly, was not always the case.
Introduction of term limits may be a solution the contention and randomness of Supreme Court nominations. They have been regularly suggested by academics, scholars, and politicians alike. Judicial term limits are widely incorporated in other areas of the American judiciary. And limits are very common practice in other democracies.
Practically, these limits could manifest in staggered 18-year terms (of course, with no form of reelection or renomination permitted), as Leonhardt posited. That would ensure every presidential term would be guaranteed two nominations, thus eliminating the arbitrary system—death and retirement—that currently dictates nominations.
Strict followers to the Constitution will correctly point out that the framers purposely did not place limits on the terms of justices 250 years ago. As Hamilton continues in Federalist 78, “…this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” In other words, the framers predicated the concept of lifetime appointments on the apolitical nature of the Court. That, obviously, has dissipated.
A change in term limits would require an amendment to the Constitution under the terms of Article V. This, though difficult, is not unheard of. What might be more difficult is convincing politicians on both sides of the aisle that their parties have a vested interest in the elimination of randomness in the nominating process.
It seems unlikely that the Court will resurrect its apolitical tendencies, as were intended by the framers, anytime soon. As many have pointed out, perhaps imposing term limits on justices is the best intermediary way to mitigate the current volatility of nominations and bring some semblance of order to the current chaos.