America’s SCOTUS Debacle: A Proposal to End Lifetime Tenure

By Benjamin M. Adams on June 30, 2018 @BenAdamsO_O         Photo by Jamelle Bouie

This proposed amendment is taken from a longer piece I wrote last year.

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PROPOSED AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES

GOVERNING THE REPLACEMENT OF JUSTICES TO THE SUPREME COURT 

1. The number of Supreme Court Justices shall be nine (9).
2. Following each presidential election, the longest tenured Supreme Court Justice (hereinafter the “Senior Justice”) shall be replaced. Within 30 days of inauguration, the President shall nominate a new Justice (Nominee) to replace the Senior Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to confirm the Nominee. If the senate votes by 2/3 to reject the Nominee, then the Nominee is removed from the Court immediately. The president shall then nominate a new Nominee who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
3. In the event of the death or retirement of Justice during* the President’s term, then the President shall choose an Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate a new Justice (Nominee) to replace the Interim Justice. Said Nominee shall become a member of the Court immediately. The Senate shall then have 60 days to hold hearings on whether or not to reject the Nominee. If the senate votes by 2/3 to reject the Nominee, then the president shall nominate a new Justice (Nominee) who shall also become part of the Court immediately and a new 60-day period for rejection shall commence in the Senate.
4. In the event of a second death or retirement of Justice during the President’s term, then the President shall choose a Second Interim Justice. Following the next inauguration, the Senior Justice shall not be replaced. Instead, the new President shall nominate two (2) new Justices (Nominees) to replace the Interim Justice.
5. In the event of additional deaths and/or retirements, then the President shall appoint additional Interim Justices and each new President shall appoint two (2) new Justices until all interim justices have been replaced. Once all Interim Justices have been replaced, then following the next Inauguration the new President shall replace the Senior Justice.

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Here are the major features of the Amendment:

First, a President appoints one and only one permanent Supreme Court Justice per term. The nation will be spared from the hit-or-miss randomness whereby some Presidents get no nominations in a term while others get two or more picks in a single term. Moreover, the President’s SCOTUS appointment powers should not rise and fall as a salient issue in Presidential elections based on the likelihood of an opportunity to nominate, especially since these opportunities often turn on unforeseeable occurrences. Under the new system, every POTUS will get a single nomination during their Term. Therefore, the issue of SCOTUS will always be salient to a campaign, as it should be, without reaching today’s fever-pitch. Equally important is that on the rare occasion when a President will be allowed to nominate two Justices in a term, the electorate knows this in advance of the election. This will lead to an increase in the public’s understanding of how and when a Presidential election is increasingly likely to influence judicial outcomes.

In Federalist 78, Hamilton argues that lifetime tenure is the best way to protect the independence of the judiciary. He may be correct, but lifetime tenure is certainly not the only way to accomplish his desired goal. This proposal increases turnover without subjecting the Court to political interference. Under the proposed amendment, Justices could serve for an extremely long time. Each Justice would start as the junior member and could serve until they had served as the senior member for 4 years (or even longer in the event of an early retirement). So in theory, you would be replacing the Senior Justice each term which means an entirely new court every 36 years. A nominee who is 49 years old could serve on the Court until age 85, and perhaps longer.

Keep in mind that only two Justices in our entire history have served that long. So the amendment does not in any meaningful way curtail the important tradition of giving tenure to Justices. Moreover, when thinking about lifetime appointments, we ought to imagine a time in the future when people may live as long as 200 years. Do we want a President to pick a justice who will serve for 160 years?  Lifetime appointments are already anachronistic, and this problem will only get worse as people live longer. The proposed amendment creates an organized and more balanced system for replacing Justices.

Reduced Powers of the Senate.  To be sure, the Senate will have less power over who sits on SCOTUS, but it seems misplaced to lament this possibility. First, the Senate has increasingly misused and abused the weighty confirmation power originally conferred to it under the Constitution. Second, the reduction in power is minimal. Any unqualified and/or disqualified candidate would surely find 2/3 in opposition. Third, at the end of any confirmation process, there is a guarantee of another Nominee in less than four years. So for a given political party that opposes a given Nominee, the focus is shifted from obstructing that Nominee to winning the next election– as it rightly should be. This restores us to the prior balance where the popular will is supposed to dictate the composition of SCOTUS, over time and indirectly, through a presidential election every four years. One should remember that the Senate is 100 Members and the proposed amendment only requires 67 senate votes to defeat a nominee. To the extent the Senate remains united across party lines, it retains total control over a nominee’s fate. To the extent that the Senate allows itself to be fractured across partisan lines, it will cede its power to the Executive branch. Again, none of this seems calamitous.

Resignation & Death One interesting feature of the new system is that a Justice who wants to retire strategically simply cannot do so. A retiring Justice will simply give the next undetermined president the opportunity to replace them. Moreover, the entire motivation for strategic retirement ends since the ideological composition of the Court will be henceforth determined by elections rather than happenstance or parliamentary machinations in the Senate. Instead, the proposed amendment is designed to ensure that each time a conservative president is elected, there will (likely) be a conservative justice nominated and that each time a liberal president is elected, there will (likely) be a liberal justice nominated. Eliminating strategic retirements by Justices is just one part of a major package of benefits. Additionally, one imagines that future Presidents will continue the trend of appointing younger Justices who will serve on the Court for many years. A Justice confirmed to the Court in their 40’s could spend the full 36 years on the Court. Of course, many Justices will not be willing or able to serve that long while a few will serve longer. On balance, it is likely that Interim Justices will be appointed from time to time. That will create some “two-judge” presidential elections. Of course, every time an Interim Justice is appointed it does not mean the next election will always be “two-judge” since the senior justice who was scheduled to be replaced but “bumped ” by a retiring or dying judge, will simply hang on an extra four years such that a two judge election will not happen. The salient feature, however, is that the public knows in advance whenever the next President will be allowed to nominate two Justices.