All Americans should mourn Justice Ruth Bader Ginsburg. She was a pioneer of women’s constitutional rights, a brilliant jurist who transformed our understanding of the 14th Amendment and a close friend to many conservatives, including Justice Antonin Scalia and me.
Justice Ginsburg would send me long handwritten notes about my law review articles, though we often disagreed. No wonder. I was one of the leaders of the effort to appoint conservatives and libertarians to the federal bench. But she treated me and everyone else she knew with courtesy and respect.
Justice Ginsburg’s close friendships with Justice Scalia and with Judge Robert H. Bork should teach us another lesson in the hyperpartisan world we occupy. We all need to do a better job of reaching out to those who we disagree with, to make the effort to understand their perspectives and endeavor to get along with them.
This is particularly the case now, as the United States confronts a Supreme Court vacancy during a presidential election year for the second time in four years. In the spirit of Justice Ginsburg’s friendship with Justice Scalia, for whom I clerked, I propose a constitutional amendment that would permanently reform a broken selection process for Supreme Court justices: a single 18-year term for each of the court’s members.
Supreme Court justices often try to retire during the presidency of someone sympathetic to their jurisprudence. Of course, that doesn’t always work: Justice Scalia died after almost 30 years on the high court trying to wait out President Barack Obama, and Justice Ginsburg died after nearly 27 years trying to outlast President Trump.
Over all, though, strategic retirements give the justices too much power in picking their own successors, which can lead to a self-perpetuating oligarchy. The current system also creates the impression that the justices are more political actors than judges, which damages the rule of law. It may even change the way the justices view themselves.
No other major democracy in the world gives the justices on its highest court life tenure, and nor do 49 of the 50 states. The longest terms are more like the 12-year terms served by German Constitutional Court justices. Countries and states that do not have term limits have mandatory retirement ages; many jurisdictions have both.
The unpredictable American system of life tenure has led to four presidents picking six or more justices and four presidents selecting none, as happened with Jimmy Carter. This gives some presidents too much influence on the Supreme Court and others too little.
It also leads to justices remaining on the Supreme Court when they are unable either physically or mentally to do the job, though this was not the case with Justices Ginsburg or Scalia. Allowing lengthy tenures on the Supreme Court — from 1971 to 2000, for instance, justices who left the court had served an average of 25.6 years — ignores Lord Acton’s admonition that “power tends to corrupt, and absolute power corrupts absolutely.” Though, of course, this was not the case with Justices Ginsburg or Scalia.
The solution is for Republicans and Democrats to unite in supporting a constitutional amendment that fixes the size of the Supreme Court at its current nine justices, each of whom would serve an 18-year nonrenewable term, staggered so that one seat opens up during the first and third years of a president’s four-year term. One-term presidents would be guaranteed two appointments; two-term presidents would get four. Each two-year Senate session would consider a nominee.
Given the length of this term, longer than for judges on the high courts of any other constitutional democracy, the justices would be amply independent.
Presidents would no longer have the incentive to pick comparatively young nominees — say, someone 45 to 50 years of age — to project their influence decades into the future. Justices would lose their power to help pick successors who share their views by retiring strategically.
In the case of early retirements or deaths, the president would nominate and the Senate would confirm a replacement to fill out the unexpired term with no possibility of reappointment.
Justice Ginsburg’s successor should serve an 18-year term. The eight current justices should draw lots as to who serves terms of two, four, six, eight, 10, 12, 14 or 16 years as the amendment goes into effect.
Failure to confirm a justice by July 1 of a president’s first or third year should lead to a salary and benefits freeze for the president and all 100 senators, and they should be confined together until a nominee has been approved. The vice president would act as president during this time and the Senate would be forbidden from taking action whatsoever on any of its calendars.
This approach would end what has become a poisonous process of picking a Supreme Court justice. It would depoliticize the court and judicial selection, and thus promote the rule of law.
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