Home / General / Rehnquist and Life Tenure

Rehnquist and Life Tenure

/
/
/
629 Views

Sanford Levinson makes an interesting point:

William Rehnquist has been on the court for 34 years, 19 of them as chief justice; his immediate predecessors, Warren Burger and Earl Warren, together served only 32 years. Judges should have the self-discipline to know when to retire, but they clearly do not. Another scholar, David Garrow, demonstrated in a University of Chicago Law Review article several years ago that all too many justices have stayed on the court even after they had become seriously debilitated. (The most egregious instance was William O. Douglas, who refused to resign even after a serious stroke; his colleagues secretly voted in effect not to allow Douglas to cast a decisive vote in 5-4 cases.) However much one might admire Rehnquist’s personal valor, it is, frankly, a scandal that the seriously ill chief justice refuses to resign. Such long terms are a disservice both to the court and the country.

What would be best is getting rid of life tenure and adopting, say, 18-year non-renewable terms of office, with each president getting two guaranteed appointments per term. This would go a long way to limit the problem of the debilitated judge. Alas, such a sensible proposal is not on the current agenda, in part because even most scholars who oppose life tenure believe — wrongly, I think — that it would take a constitutional amendment to end the practice. (This is Calabresi’s and Lindgren’s view, which is disputed by, among others, Duke University professor Paul Carrington and Cornell University professor Roger Cramton.)

I think that this is correct, and it’s important to see the connection between the two. For the reasons that Prof. B suggests, it’s difficult to be too hard on Rehnquist; staying on the court may literally be keeping him alive. Nor can presidents be blamed for making youth considerationon in Supreme Court nominations; the incentives of the system encourage it. Most countries have fixed tenures for high courts, and I think a (non-renewable) fixed tenure is clearly the best policy. (There are alternative ways of doing it; Canada, for example, has an age limit. This strikes me an inferior, because the incentive to appoint young judges remains.) In addition to the problems Levinson discusses, fixed tenures have the additional advantage of greatly lessening the randomness of which Presidents get to appoint justices. A party, under a fixed tenure system, can only dominate the Supreme Court if it is able to consistently win the White House and Senate. (This is relevant to other federal courts too, of course, but less so: the workload in other federal courts is far more demanding and the position is less powerful, so few justices stay on for lengthyty period.) Some people protest that this will make Supreme Court appointments a more prominent part of Presidential campaigns–this strikes me as a feature, not a bug. Voters should take the issue into consideration if they think it’s important, and should be aware of the stakes in advance.

I doubt that it will ever happen, but fixed tenures for court appointments would be a significant improvement.

  • Facebook
  • Twitter
  • Linkedin
This div height required for enabling the sticky sidebar
Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views : Ad Clicks : Ad Views :