(Bloomberg Opinion) -- My recent column on nine-year term limits for Supreme Court justices has sparked a lot of responses. Here I will try to respond to some of the more thoughtful objections.
1. Why would you want a knock-down, drag-out confirmation fight every year?
I don’t care for knock-down, drag-out confirmation fights at any time, and certainly not every year. But I believe my proposal would lead to fewer battles, not more. No single nomination would be quite as consequential as each seems now, because activists on both sides would be aware that another vacancy would open next year, and another the year after that, and so on and so forth.
As I argued, the fights are so intense because the vacancies are so rare. Were vacancies more common, each would be less valuable, and there would be less reason to spend political and other capital fighting over them.
2. Aren’t you worried that a two-term president would get to appoint eight justices, who might then decide his fate?
If you want to limit presidents (or senators or anybody else) to a single term, we can certainly discuss that. But I don’t share the worry, because the chances at any moment that any president’s fate will rest in the hands of the Supreme Court are very small. (Nixon was doomed no matter which way U.S. v. Nixon was decided.) Moreover, even if we do assume that presidents worry about being hauled before the courts, as I suppose the current incumbent must, I don’t think that even an entirely complaisant Senate will confirm a bunch of backroom cronies of the chief executive. (Although it must be added that some backroom cronies turned out just fine — Thurgood Marshall, for instance.)
But if you’re worried about justices and presidents conniving, we might also add a rule that no individual can serve more than a single term on the Supreme Court.
3. What I meant was, won’t the new president be able to appoint enough justices that they’ll overrule precedents willy nilly?
If the argument is that we should appoint only justices who won’t overrule precedents willy-nilly, I’m all for it. But that will involve a lot of time searching for judges who aren’t already on each party’s short lists, which tend to contain lots of people thought to be reliable votes on the issues the parties and their interest groups care about.
In other words, the correct answer to this concern is to pick better judges. But as long as we use “better” to mean “people who will vote the way we want,” the problem will never be fixable, no matter how often or seldom a vacancy may arise.
4. The justices would have nowhere to go next, because everything else would be a step down.
I’m not worried about anyone who would consider leaving the court a step down. If they really think they’re that much better than the rest of us, maybe they shouldn’t be on the court to begin with.
But perhaps what's underlying this concern is that whatever a justice might do next could represent a serious conflict of interest. This is admittedly a serious objection. Consider the case of Royce H. Savage, a federal district judge in Oklahoma who in 1961 resigned his commission in order to go to work for Gulf Oil Corp., where he became general counsel. The trouble was that just a year and a half earlier, Savage had dismissed the government’s criminal price-fixing case against — guess who? — Gulf Oil!
His defenders continue to insist that there was no evidence of wrongdoing, and they’re right, but the problem was the appearance of the thing. Presumably that’s what President John F. Kennedy had in mind when he said of the episode: “I don’t think that anyone should accept a federal judgeship unless prepared to fill it for life because I think the maintenance of the integrity of the judiciary is so important.”
But the reason ethicists still talk about Savage, more than half a century after he left office, is that his case was so unusual. Since then, scores of judges have left to enter private law practice, and few if any have been accused of any impropriety.
Besides, Supreme Court justices who served their nine years would have options other than joining the private bar. They could teach, they could write, they could retire entirely and enjoy life. Most important, they could return to the appellate bench. The simplest way to establish the system of term-limited justices would be to choose them from among those already serving as life-tenured jurists. They could spend their nine years at the Supreme Court and then, still retaining the right to stay in their jobs for as long as they like, continue in the judicial roles they had before.
5. Wait a minute. Didn’t you recently defend life tenure for the federal judiciary?
Indeed I did, a million years ago — that is, 2013 — in this very space. And I even used Royce Savage as one of my examples. I continue to believe that life tenure for judges has much to recommend it. (For my reasons, see the earlier column.) What I’m arguing now is that those who reach the Supreme Court needn’t spend their entire life tenure there, but can sit on other courts after their nine-year terms expire.
6. Isn’t this just a liberal plot to weaken the court now that it has a conservative majority?
I’ve been arguing for term limits on the Supreme Court for almost a quarter of a century. And no sitting justice would be affected. In any case, I’m the last person who would characterize justices as either “liberal” or “conservative.” I just want good justices and fewer confirmation battles. I think term limits are a way to accomplish both.
And thanks to all who wrote to share their concerns.
To contact the editor responsible for this story: Michael Newman at mnewman43@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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