In the past, we here at Donklephant have suggested that Supreme Court Justices should have a fixed term of instead of a lifetime appointment. I suggested 16 years. Most legal scholars suggest 18.

Personally, it’s never made any sense to me why these people have lifetime appointments and can then selectively choose when to retire on the basis of their own personal politics. Even before Rhenquist passed on, he publicly stated he wanted to retire during a Republican presidency. What kind of message does that send? And actually, it seems to be counter to what the court is all about: fairness and impartiality.

LA Times columnist Ronald Brownstein provides some more compelling points to add to the conversation.

Justices today, on average, remain on the high court longer and retire at a more advanced age than ever before. Supreme Court justices now routinely serve a quarter-century or more. No justice has retired at an age younger than 75 since 1981 (when Potter Stewart stepped down at 66).

The Soviet Politburo probably turned over faster.

Which is why an informal band of prominent legal thinkers from left and right is challenging the Constitution’s grant of lifetime tenure to Supreme Court justices. With life spans lengthening, and the court’s members clinging so tenaciously to their robes, these critics want to limit justices to a single fixed term, usually set at 18 years.

And with people living longer, it seems to be affecting our ability to have a balanced court.

Only once from 1869 (when the court’s size was fixed at nine) through 1973 did a president go a full term without making a Supreme Court appointment. That’s now happened in three of the last seven presidential terms (Jimmy Carter’s only term, Bill Clinton’s second and George W. Bush’s first). Fewer vacancies mean more conflict over those that occur because neither side can be certain when it will receive another chance to change the court.

Longer tenure also raises the stakes in each confirmation by multiplying the effect of each nominee. The common assumption during the recent confirmation debate over new Chief Justice John G. Roberts Jr. was that he would serve at least 30 years.

Yes, 30 years. No matter which way you slice it, that’s a heck of a long time for ONE person to be determining what cases come before the SCOTUS. In fact, it’s ridiculous that politicians can game the system like this. I doubt that’s what our forefathers had in mind.

However, did they think we’d want to elect our judges?

Several competing fixed-term proposals have surfaced. Law professors Paul D. Carrington of Duke University and Roger C. Cramton of Cornell University would impose an 18-year term through congressional statute; they maintain they can satisfy the Constitution’s guarantee of life tenure by allowing justices to sit on lower courts after their 18 years on the Supreme Court.

Calabresi and Lindgren, convinced that approach is unconstitutional, prefer a constitutional amendment to establish an 18-year term. Davis has the most provocative idea: He would not only impose 18-year terms, but also require prospective justices, after they receive Senate confirmation, to win approval in a national up-or-down referendum.

Yeah, I don’t agree with a national referendum. At least not yet. In the future I may just change my mind because that may be the only way our highest court can maintain the type of balance it needs to avoid being activist in one direction or the other.

Stop the ACLU has a good historical look at this.

(HT: Political Animal)