Contrary to the judiciary’s reputation as the least dangerous branch, judges exercise almost every executive and legislative power other than going to war. This is why the battle over Antonin Scalia’s successor is so bitter.
That wasn’t the Constitution’s original plan. The courts were important but were not to supplant the other branches. Rather, judges were expected to constrain the executive and legislative branches.
Alexander Hamilton expected the judiciary to play a “peculiarly essential” role to safeguard liberties and act as an “excellent barrier to the encroachments and oppressions of the representative body.” Judges were to “guard the Constitution and the rights of individuals” from “the people themselves.”
James Madison, intimately involved in drafting the Constitution, explained that: “independent tribunals of justice will consider themselves in a peculiar manner the guardians of [Bill of Rights guarantees]; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they are will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”
The judges who assert these vast powers enjoy lifelong immunity from accountability. This means that whoever succeeds Scalia still could be writing opinions at mid-century.
Unfortunately, actuarial accident determines who serves. Scalia’s death gave President Barack Obama an opportunity to shift the Supreme Court leftward, unless the Senate stops him. The Constitution gives the Senate the power to advise and consent. That body is empowered to say no.
The most important qualification for judicial office is philosophical. Put simply: does the nominee believe the Constitution means anything apart from the jurists’ personal preferences? If not, then the Senate should reject the nomination.
Of course, Democrats are demanding Senate approval of Judge Merrick Garland, despite some disquiet among left-wing activists. Yet, as a senator, Barack Obama opposed (and backed a filibuster against) George W. Bush’s nominees. Sen. Chuck Schumer (D-NY) advocated refusal to accept any Bush II nominee.
Nevertheless, no one really benefits from politicizing judicial nominations and refusing to fill vacancies for partisan reasons. There is an obvious answer: appoint jurists for a set term in office, perhaps ten years. No longer would the state of American medicine typically determine which president gets to fill the high court.
Jurists still would be independent. And bad justices could be gone in ten years. Set terms also would ensure a steady stream of new justices. That likely would result in a more diverse membership in terms of career, background, and perspective.
Most important, there might be more philosophical variety. Unfortunately, “mainstream” justices generally back the steady expansion of the state, treating the Constitution as creating only small islands of liberty in the midst of a vast ocean of government power.
While term limits would not guarantee better jurisprudence, a larger number of appointees would increase the likelihood of at least a few advocates of an active court dedicated to enforcing the Constitution’s liberty guarantees.
Finally, fixed terms would moderate battles over Supreme Court appointments. Losing the fight over Scalia’s replacement would not mean the possibility of 30 or more years of hostile decisions.
Appointees also might improve. Today, presidents look for safe and confirmable choices with nondescript views or no paper trail. With limited tenure, presidents could take greater risks in who they nominate.
Judicial terms would require a constitutional amendment. However, the issue could unite right and left. As I argued on American Spectator: “Fixed terms for jurists is the best way to both preserve independence and impose accountability.”