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Arguments Against 18-Year Term Limits for the Supreme Court

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Arguments Against 18-Year Term Limits for the Supreme Court CONTENTS Introduction 1 Arguments Against 18-Year Term Limits 2 They do not promise an equal opportunity to appoint justices 2 They would only increase the politicization of the Supreme Court 4 They would create numerous conflicts of interest and increase public cynicism 5 Positives are greatly outweighed by negatives 6 Conclusion 8 About the Author 8 Chart 1: Vote Counts by Supreme Court Nominee Since 1993 4 R STREET POLICY STUDY NO. 161 political rage brewing around the Capitol.2 The public was December 2018 also sharply divided. Days before the final vote, public poll- ing indicated that 88 percent of Republicans supported his confirmation, while 83 percent of Democrats did not.3 There are many alleged reasons for such rancor. Some believe it was the result of ever-escalating partisan judicial confir- ARGUMENTS AGAINST mations. In support, they cite the nearly unanimous votes for 18-YEAR TERM LIMITS FOR THE Justices Antonin Scalia and Ruth Bader Ginsberg—compared to the recent party-line votes for Justices Neil Gorsuch and SUPREME COURT Brett Kavanaugh.4 Others claim the political hostilities dur- ing Justice Kavanaugh’s confirmation were more likely in Anthony Marcum response to fears that he would be a much more conservative INTRODUCTION jurist than his predecessor, Justice Anthony Kennedy and thus would solidify the court’s 5-4 conservative bloc. fter Justice Brett Kavanaugh’s contentious Supreme Court confirmation, there were numerous cries Irrespective of the reasons, many across the ideological spec- among politicians and commentators for the need trum have looked to various reforms that could lower the to “lower the temperature” around the Supreme political tensions around future confirmations. In addition ACourt.1 The pleas were apt. Justice Kavanaugh’s confirma- tion was unprecedented for its media attention and the par- 2. See, e.g., Frank Thorp, “How a Kavanaugh Senate vote could play out this week,” NBC News, Oct. 2, 2018. https://www.nbcnews.com/politics/congress/how-kavana- tisan divide it created among politicos and the public. For ugh-senate-vote-could-play-out-week-n915901; Brett Samuels, “Judiciary Dems call weeks, front-page articles in the nation’s leading newspapers on GOP counterparts to correct Kavanaugh tweets,” The Hill, Oct. 3, 2018. https:// thehill.com/homenews/senate/409778-senate-judiciary-dems-call-on-gop-counter- and online journals covered the daily ins and outs of Senate parts-to-correct-kavanaugh-tweets; Office of Sen. Chuck Grassley, “Grassley: With procedure, feisty tweets and dueling press releases, and the FBI Work Complete, It’s Time to Vote,” Press Release, Oct. 4, 2018. https://www. judiciary.senate.gov/press/rep/releases/grassley-with-fbi-work-complete-its-time-to- vote; Office of Sen. Dianne Feinstein, “Feinstein Statement on ‘Appalling’ Republican Attacks on Sexual Assault Survivors,” Press Release, Oct. 3, 2018. https://www.judi- ciary.senate.gov/press/dem/releases/feinstein-statement-on-appalling-republican- attacks-on-sexual-assault-survivors; Caroline Simon and John Bacon, “‘We are your voters!’ Energized Kavanaugh protestors put swing vote lawmakers on notice,” USA Today, Oct. 4, 2018. https://www.usatoday.com/story/news/politics/2018/10/04/ brett-kavanaugh-protesters-target-supreme-court-nominee-again/1519917002. 3. Including Independents, 48 percent of Americans opposed now-Justice Kavana- ugh’s nomination, 41 percent supported the nomination and only 11 percent were unsure. See: “NPR/PBS NewsHour/Marist Poll Results,” Oct. 1, 2018, p. 33. http:// maristpoll.marist.edu/wp-content/uploads/2018/10/NPR_PBS-NewsHour_Marist- Poll_USA-NOS-and-Tables_1810021305.pdf#page=33. 1. See, e.g., Melissa Heelan Stanzione, “Kavanaugh Saga Amplifies Call for Supreme Court Term Limits,” Bloomberg Law, Oct. 13, 2018. https://www.bna.com/kavanaugh- 4. “Supreme Court Nominations: present-1789,” U.S. Senate, accessed Nov. 28, 2018. saga-amplifies-n73014483272. https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm. R STREET POLICY STUDY: 2018 ARGUMENTS AGAINST 18-YEAR TERM LIMITS FOR THE SUPREME COURT 1 to reforming the confirmation process via amending Senate term limits would do little to decrease the politicization of rules,5 a number have looked to reforming the court itself. the Supreme Court. On the contrary, it would do the opposite From a review of recent commentary and scholarly articles, by inextricably tying the fate of the Supreme Court to every one of the most prevalent reforms offered is the implemen- partisan election. Third, term limits would offer justices tation of 18-year term limits for Supreme Court Justices.6 unprecedented post-judicial opportunities, creating numer- ous conflicts of interest for the Court and increasing public The suggestion of 18-year term limits is not new. Variations cynicism toward the judiciary. Finally, the actual benefits of of the same proposal have been flouted by scholars and com- term limits—like the opportunity for a more-diverse judi- mentators for over 30 years.7 And although each presents ciary—are greatly outweighed by its negatives, which should their own perspective to the debate, proponents neverthe- be fatal to its implementation. less agree that term limits offer numerous advantages to the Constitution’s current guarantee of life tenure “during good behavior.”8 ARGUMENTS AGAINST 18-YEAR TERM LIMITS They do not promise an equal opportunity to The most claimed advantage of 18-year, staggered term limits appoint justices is that it results in an open court seat every two years—prom- ising two vacancies each presidential term. The benefits, It is seemingly random when a new justice joins the Supreme proponents allege, are numerous, including that it will “elim- Court. In two terms, President Ronald Reagan saw four jus- inate occasional hot spots of multiple vacancies” and over tices confirmed, while President Bill Clinton saw only two. time, decrease the political temperature surrounding judicial Like President Clinton, President Barack Obama had two confirmations.9 Further purported advantages include fewer justices confirmed in his eight years, while President Donald politically strategic retirements, greater incentives to nomi- Trump accomplished the same in only 17 months.10 nate senior and established nominees and more opportunity to add greater diversity to the Court. Proponents argue that term limits would stop such a phe- nomenon. Staggered, 18-year term limits would promise an But term limits will not achieve the goals its proponents open Supreme Court seat every two years, offering two new intend. There are several reasons why. First, term limits do justices every presidential term. As a result, it is reasoned not promise presidents an equal opportunity to appoint jus- that term limits will offer consistent—and fair—opportuni- tices. Even with terms, vacancies will often remain random. ties for presidents to nominate justices to the Court.11 But Indeed, justices will not always complete their set terms and this reasoning is based on a myriad of assumptions, including the term limits do nothing to prevent Senate machinations, that justices will nearly always complete their 18-year terms such as purposefully delaying a confirmation vote. Second, and the Senate will always confirm a president’s nominee. 5. Reforms include restoring the 60-vote filibuster and enforcing strict deadlines Consider retirements. Proponents of 18-year terms argue for the Senate to vote on a president’s judicial nominees. See, e.g., Fix the Court that retirements would be incredibly rare because justices (@FixTheCourt), “We can fix the #SCOTUS confirmation mess! 1. Restore 60-vote threshold 2. Nominees’ docs can’t be withheld unless active nat’l security concerns would not be serving on the Court in their later years. They 3. Senate has 180 days to act. If they don’t, nominee is automatically confirmed also contend that term limits would stop justices from stra- on day 181,” October 4, 2018, 1:13PM. Tweet. https://twitter.com/FixTheCourt/sta- tus/1047897527389970432. tegically retiring, leaving the Court during a particular administration with hopes that the president will select a 6. The present study only discusses 18-year term limits for Supreme Court justices, as most recent proponents of term limits have settled on 18 years. like-minded jurist. This is not the case. 7. See, e.g., Philip D. Oliver, “Systematic Justice: A Proposed Constitutional Amend- ment to Establish Fixed, Staggered Terms for Members of the United States Supreme With term limits, presidents—and justices—have even more Court,” Ohio State Law Journal 47:4 (1986), pp. 799-834. https://kb.osu.edu/bit- of an opportunity to quickly change the ideological direction stream/handle/1811/64322/OSLJ_V47N4_0799.pdf; Henry Paul Monaghan, “The Confirmation Process: Law or Politics?”,Harvard Law Review 101 (1988), pp. 1202-12. of the Court. In two terms, one president could—at a mini- https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1776&context=facult mum—nominate four justices. If one additional justice were y_scholarship; James E. DiTullio and John B. Schochet, “Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenew- to prematurely leave the Court, the same president could able Eighteen-Year Terms,” Virginia Law Review 90 (2004), pp. 1093-1149. http://www. nominate five justices—a majority. This could be a frequent virginialawreview.org/sites/virginialawreview.org/files/1093.pdf; Steven G. Calabresi and James Lindgren, “Term Limits for the Supreme Court: Life Tenure Reconsidered,” occurrence. According to one actuarial study, with 18-year Harvard Journal of Law and Public Policy 29:3 (2006), pp. 769-879. https://papers. term limits, a two-term president would have a 43 percent ssrn.com/sol3/papers.cfm?abstract_id=701121; Ben Feuer, “Why the Supreme Court needs 18-year term limits,” L.A. Times, July 18, 2017. http://www.latimes.com/opinion/ op-ed/la-oe-feuer-supreme-court-term-limits-anthony-kennedy-20170718-story.html.
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