Obviating strategic resignations depoliticizes the confirmation process---solves legitimacy

Strategic retirements have become the norm since the 1960s. The last time a justice retired when a vacancy would likely result in the appointment of a justice with an opposing ideology was more than 30 years ago, when Justice Thurgood Marshall stepped down due to declining health. President George H. W. Bush appointed Justice Clarence Thomas to replace him.

A Dysfunctional Confirmation Process

Due in large part to lengthening terms and strategic retirements, the Supreme Court confirmation process has become highly dysfunctional. Nominees are increasingly confirmed on near party-line votes regardless of their underlying merit or commitment to values such as equal justice. Chief Justice Roberts is the only sitting justice to have received the support of a majority of senators not in the nominating president’s political party. The confirmation process has likewise become awash in dark money, which creates risks of conflicts of interest and contributes to an appearance of politicization.

The long-standing Senate norm of granting every nominee a hearing and a vote as part of the Senate’s constitutional responsibility to provide advice and consent on judicial appointments has been replaced with exercises in raw power. These dynamics were on full display during the confirmation battles over the Supreme Court seats vacated by Justices Antonin Scalia and Ruth Bader Ginsburg, who both died unexpectedly during a presidential election year. By refusing to give Merrick Garland a hearing or a vote in 2016, the Republican Senate majority broke a norm of more than 100 years to evaluate every Supreme Court nominee’s fitness for the office. (Prior to this incident, the last time the Senate refused to take action on a Supreme Court nominee during a legislative session was shortly after the Civil War.) The Republican majority ended up holding the seat open for more than a year — until after Trump was elected and assumed the presidency. Four years later, when Justice Ginsburg died 45 days before Election Day, President Trump and Senate Republicans rushed to fill the seat, holding a confirmation hearing for Amy Coney Barrett while early voting was already under way.

While the constitutional brawls over the vacancies of Justices Ginsburg and Scalia were particularly hostile, even less bitter confirmation fights have been characterized by vitriol and threats of escalation. If existing dynamics continue, appointing justices during periods of divided government may simply become impossible.

A Lack of Democratic Legitimacy

Checks and balances are deeply rooted in our constitutional system. With respect to the judiciary, the Constitution achieves this in large part by giving elected officials — the president, with the advice and consent of the Senate — the power to appoint justices, so that over time the Court’s membership reflects prevailing public values. For example, proponents of the Seventeenth Amendment, which provides for the direct election of senators, advocated for its passage in part so that the public could more directly hold the judicial branch accountable during a period when it was perceived to be captured by corporate interests.

But this connection between the Court and the public has grown tenuous, undercutting the Court’s democratic legitimacy. For instance, it is increasingly common for presidents to have no opportunity to fill a single Supreme Court seat during a four-year term. Up until President Jimmy Carter, this was a rare occurrence: from President George Washington through President Gerald Ford, only 5 out of 47 presidential terms were without any Supreme Court appointments. But in the 12 presidential terms since then, there have already been 4 with no appointments.

There are also wide disparities in the number of seats individual presidents have had the opportunity to fill, contributing to stark imbalances on the Court. Beginning with President George H. W. Bush, who appointed the longest-serving justice currently on the bench (Justice Thomas), Republicans have won four out of nine presidential terms and won the popular vote only twice. But Republicans have appointed six of the current nine justices. This supermajority has already had a transformative effect, handing down rulings on issues including civil rights, gun rights, and abortion that disproportionately harm vulnerable communities and are unmoored from the values of the American public. Not surprisingly, public confidence in the Court has plummeted.

A Global Outlier

Among democracies, the United States stands virtually alone when it comes to the tenure of its justices. Today no other major democracy gives lifetime seats to judges who sit on constitutional courts. This includes both common law countries, such as Ireland, New Zealand, and South Africa, and civil law countries, such as France, Germany, and Spain, as well as former U.S. territories whose constitutions were heavily influenced by the U.S. Constitution, such as the Philippines. Even democracies that previously granted constitutional high court judges unbounded life tenure, including Australia, Canada, and the United Kingdom, have since abandoned this practice. Nearly all countries with specialized constitutional courts impose fixed terms for the judges who sit on them, most of which are nonrenewable.

Virtually every state court system has likewise rejected life tenure. Forty-seven states require that their supreme court justices serve for fixed terms, subject to reelection or reappointment processes. Most states have mandatory retirement ages. Only three provide justices with indefinite terms, but two of them — Massachusetts and New Hampshire — impose age limits. Only Rhode Island grants its high court justices life tenure without an age limit. Federal bankruptcy and magistrate judges likewise serve fixed terms.

Term limits are also widely used in the United States for other important offices. George Washington famously set a two-term norm for the presidency by leaving office after eight years. When Franklin D. Roosevelt broke the tradition with a four-term presidency, the country responded by passing the Twenty-Second Amendment to limit presidents to two terms. Thirty-seven states impose term limits on governors, 15 states impose term limits on legislators, and 9 of the 10 largest cities in the nation impose term limits on mayors. Not surprisingly, large, bipartisan majorities of Americans likewise support term limits for Supreme Court justices.