The case for term limits on the Supreme Court

Let’s imagine the events of January 2016 under different circumstances.

A Republican president is in the last year of his second term. Democrats control the Senate. Supreme Court Justice Antonin Scalia dies unexpectedly.

The president, desperate to keep a key seat from flipping, wants to name Scalia’s replacement before leaving office. The Senate majority leader, however, refuses to schedule a confirmation hearing. “The American people,” he says, “should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Though the president fumes and Republicans rant, the Democrats don’t bend. A Democrat wins the White House. Democrats hold the Senate. The new president chooses a nominee who gets confirmed along party lines.

For all the Democrats’ outrage about Sen. Mitch McConnell’s stonewalling two years ago, they would have used the same tactics. If a second vacancy had presented itself five months before the midterm elections, they would have rushed to fill it.

Republicans would be the ones complaining about hypocrisy, but Democrats wouldn’t care. That’s how partisan court appointments have become. And why Congress should approve a constitutional amendment to change the system.

Hard as it may be to believe, Scalia himself was confirmed 98-0 in 1986. Yes, the Antonin Scalia who led a dramatic rightward shift in the court’s trajectory drew not one dissenting vote from a Democrat.

Perhaps the party saved its fire for the vote on Chief Justice William Rehnquist, which took place the same day. Thirty-one Democrats opposed Rehnquist, but 16 Democrats voted for him. Two Republicans voted against.

Bill Clinton’s two appointments also were stunningly non-controversial by current standards. The vote for Ruth Bader Ginsburg in 1993 was 96-3. In 1997, Senate control had shifted to the GOP, but administration officials presented a list and settled on someone whom Republicans could live with. Stephen Breyer was confirmed 87-9, with the main issue being a potentially questionable investment he had made.

Nothing so collegial will happen with Brett Kavanaugh. His hearing will produce the sort of conflict that stokes talk show and talking head ratings, because that’s what Washington does best these days with Congress still basically dysfunctional.

Ultimately, the Senate will confirm Kavanaugh. Even if one or two Republicans balk, one or more of three Democratic senators up for reelection in Trump-friendly states will vote for Kavanaugh. Through a combination of politics and luck, Donald Trump potentially will have reshaped the Supreme Court in less than two years.

With a shift the other way, though, a Democrat might have had the same opportunity. Either way, we have reached a dangerous point when politics overwhelms the supposedly independent judiciary.

A reform movement has developed among liberal and conservative scholars. Their plan would impose 18-year term limits on Supreme Court justices. Terms would expire every two years, in the odd years of a president’s term.

Even those who oppose term limits for Congress support this approach for the high court as a way to reduce the factor that luck plays in appointments. Each president would get two picks per term. Someone who wins reelection obviously could have more influence, but the term limits would reduce that influence. No more justices would serve past their sell date while waiting for the right president under whom to retire.

Aside from the hard partisans, resistance might come from those who consider term limits a form of age discrimination. There’s no sign that Anthony Kennedy, who served 30 years until age 81, was failing. The same goes for John Paul Stevens, who served for 35 years until retiring in 2010 at 90.

But term limits actually could encourage the selection of older justices. Both parties’ current preferred candidate is someone in his or her 40s or early 50s, to ensure as long a tenure as possible. Neil Gorsuch was 49 when Trump chose him. Kavanaugh is 53. Without a lifetime appointment, youth could matter less than experience.

How would this happen? Congress would have to approve a constitutional amendment, since Article III allows lifetime appointments for federal judges. Then 38 states would have to ratify it.

Polls show wide, bipartisan support for court term limits. Take the Supreme Court away from the partisan extremes.