Supreme Court Term Limits

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Josh Claybourn links to a proposal in the Virginia Law Review to give Supreme Court justices 18-year term limits and stagger them so that each president would appoint a new justice every two years. This is supposed to address a few problems that arise from the current system. I found it interesting enough reading that I figured I'd link to it and say a little about it, given that I don't have much time to write anything more substantial while I've still got piles of grading to work through, a good number a papers still to finish by Friday and then two whole sets of exams to finish by Monday and Tuesday.

You'd no longer have strategic retirements during presidencies when a similarly-thinking judge might be more likely to be appointed. This is unfair to the people who elect a president who may not get many appointments when others will get proportionally many.

The current system rewards appointing younger judges to the court instead of more seasoned veterans of the higher courts. Clinton was criticized for appointing Ruth Bade Ginsburg because many thought she was too old and would have to be replaced too soon, detracting from the weight of Democrats' finally having an appointee after so long (in part because of the first problem). If there's a fixed term limit, this worry is much less serious.

Also, there are othe random factors that determine how many nominations a president will make. People get sick and/or die. Some people just retire because it's been a long enough time for them to serve, regardless of political reasons. Many presidents get an appointment or two per term. Some get more like four or five. Some get none, most recently both Ford and Carter, eight years in a row, while Reagan got three, Bush got two, and Clinton got two. Is that fair to the voters that their vote for a president doesn't always transfer to the same number of appointees?

The proposal in question would give each president two appointments per term, and the whole court would rotate every 18 years. The longest-serving justice would retire, to be replaced by the sitting president during that time, and then two years later the next longest-serving justice. Chief Justices come from sitting members of the Court, elevated by the president, which allows a new replacement to come in. There are more details, but it looks to me as if it would be a fairly well-structured system. I'm not convinced, though. It does seem to do better about all those problems, but I'm not sure the problems are absolute moral concerns that necessarily need fixing. There's all sorts of unfairness in life, and do we need to have all our laws fixing every kind of unfairness? I haven't thought about this long enough to consider the downsides, some of which they do address in the paper. What would be the downsides of something like this, and would they outweigh what seem like good consequences?

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