Two questions on the Supreme Court that sprung to mind that I could use your thoughts on, apropos of Justice Scalia dying.
First question - Do you agree with this article that life appointments are a bad idea given how much longer people are living these days compared to back in the day? Should term limits be put on appointments?
Second question, looking at the demographics of the Supreme Court it turns out that 96.4% of Justices have been men. This boggles my mind - if we’re going to appoint someone for life, let’s take it seriously. Why isn’t the SCOTUS mostly women when women on average live longer than men? Doesn’t the Pres want to get the most bang for the buck? I can understand maybe back in the ‘50s when they didn’t want no wimmin tellin’ us what to do with their fancy book lernin’, but these days it makes no sense to me to appoint a man. Whadya reckon?
Without crawling inside of the mind of a president, I would expect other things are more important to them (like political philosophy) then making sure they pick a young woman who will be on the court for 50 years. The fact that someone might tend to live longer is probably less on their mind than getting a woman on the court mainly because shes a woman. If it was that important, they would be nominating 25 year olds…they don’t because other things are more important.
I think the current situation is a problem, but I’m not sure that term limits are the answer. That is, I don’t think the problem is that the justices are living too long and thus serving to long, but rather that the motivation behind lifetime appointments is supposed to be that they are not going to be up for reelection and, thus, are insulated from political motivations. Unfortunately, it seems that in today’s political environment, that political views are going to come into play regardless, and chances are that since things have only gotten more polarized since Reagan, with Scalia being the longest serving Justice and having been appointed by him, that if things remain unchanged, we’ll only see it get MORE politicized, not less.
What’s the answer? I dunno. Maybe set up some kind of rotation such that one of the justices is appointed or reconfirmed every two years so that we have a consistent rotation, discouraging them from either holding on until a president they agree with is in power to retire or they die and maintaining that older ones stick around long enough that the political environment changes and you get some legacy but there’s always an infusion of youth so that we get some diversity of views and a sample of them over time.
Or maybe the whole design of the Supreme Court needs to be reconsidered, maybe requiring a super majority rather than a simple majority so that a given justice is less likely to be too extreme toward one party unless that party has a really solid majority.
The thing is, any changes we might make would take years before we would really start to see any results and then make adjustments depending on how it plays out.
Diversity is a good thing, but it’s still most important to make sure we get the most qualified person for the job. As was already pointed out, for a lot of our history, minorities and women weren’t involved in law, going forward, I think we’re more likely to see more and more qualified minorities and women, but I don’t think it’s fair to use the entire history to get the 96.4% number and use that to criticize the current state. After all, right now there’s 3 women and 2 non-whites in the court (Sotomayor being both) but, at least the current court defies that history. Yes, it could be better, and chances are as more of these justices retire, over time, we’ll start to approach a better representation in that regard.
And as for appointing women, yes, statistically a given woman is more likely to live longer than a given man, but there’s some issues with that. First, I think a lot of that life expectancy issue comes down to things like infant/childhood mortality, risky behavior, etc. Also consider that, like withe the president and congress, they get that same level of health care. It seems like all of these justices and politicians tend to live well into old age. But moreso, choosing a woman hoping she’ll live longer because she’s a woman, it seems like a better way would be getting a general health check and analyzing one’s genetics and lifestyle for risk factors would FAR outweigh any other factors for longevity. But you still never know, someone could be in perfect health and expected to live for decades more, then get in a car wreck.
This isn’t a terribly well thought out position, so I may regret it shortly but… as I understand it, the idea behind lifetime appointments was so that a Supreme Court Judge doesn’t need to worry about remaining in anyone’s good graces so that they can get another job when they’re done with the Supreme Court job. So rather than a set term limit in number of years, I’d rather see it an age limit. Get them well past retirement age, and then thank them for their service and gtfo. There’s a good 20 years between “retirement age” and “probably going to die” age. Limiting service to those under, say, 70 will protect them from undue influence in their judgement, and at the same time limit those dying on the bench and so create a more predictable timeline for new appointments.
Lifetime appointments are ridiculous, for any position, and should immediately and without hesitation be banned. Yeah, sure, let’s have some older-than-dirt codger who can’t even remember which way his pants go on making policy. I am being harsh, but I mean it. 20 years is a good long time. I’d even be willing to go as far as 30. But there’s a point where you’re just in touch with the new generation of people anymore and need to step down and let new minds take over.
Actually that’s just jogged my memory about a third question I had about SCOTUS appointments, namely are they given any sort of health check or physical conditional to the President appointing them? I dunno about you but if I were President I’d be pretty pissed off if an appointee became a past-tense person only a year or two after I’d appointed them.
Fair point on the entire history, I mean we’re including the time that women weren’t even allowed to vote ferchristsakes so it is a reasonable assumption that any President who put forward a woman to fill the seat of a Justice would probably get laughed out of town.
But these days, surely there’s enough women who qualify for the position. All else being equal, why wouldn’t a President want to appoint a woman who is most likely going to outlast any man who is appointed? That’s why I’m none the wiser as to why only 3 out of 9 Justices are women.
Or to put it another way, if you had a vacancy on the Supreme Court and there was a guy who was universally agreed by both parties to be the best Constitutional legal expert in history, the best possible appointee, but he only has a year or two to live. Well, he’s not going to be nominated and it’s purely down to his lifespan. Obviously the contrast between men and women isn’t that extreme but according to wiki there’s a good 5 years difference, a not insignificant amount of time (and longer than a Presidential term).
At the same time, some of these old farts have more experience in the legal world than I’ve been alive, and as long as they’re still of sound mind, they’re far better for making the kinds of long-term and considered choices that the Supreme Court makes than some hot-shot 45 year old lawyer would.
I do think there ought to be some mandatory retirement guidelines however. Maybe an appropriately high age limit, and/or some kind of mental acuity test would be appropriate- basically what WhyNot is saying, but with the twist of having some kind of external check against old senile justices.
Life time appointments are fine, they prevent threats of job loss being used against a justice.
However, I totally agree with the rest. When a person is too old to drive to work, they are probably too old to interpret laws for this land. 70 and they are retired. This would also give notice to an administration when an opening was coming up, unlike dying does.
A long life wasn’t all that unheard of back in the day. Thomas Johnson lived to be 87, John Jay 84, William Cushing 78, etc. Yes, more justices were dying in their 60’s but you weren’t a modern Methuselah to live into your 70’s.
Although there’s a general age expectancy gap between men and women, I expect that the health care Justices have access to helps alleviate that. Whatever the issues of the modern Supreme Court is, I don’t know if these are major ones.
Yes, but on average, they’re now older when they retire, if they retire. Perhaps that’s because medicine has improved, and kept them more functional later in life. Or perhaps it’s due to political wrangling. But before 1971, the average age of a Supreme Court justice was 68.3. Now it’s 78.7. That’s a significant lag when it comes to Presidents’ nomination of newer justices who are more in step with modern mores and interpretation of the laws, and who aren’t as likely to die in office.
You don’t need to be spry to be a Supreme Court justice. You could do the job as a quadriplegic. All you need is a functioning brain. Now, if there are signs of dementia or Alzheimer’s, there should be a mechanism (and there is) to remove that justice, but otherwise, I’m cool with letting them work until they die or feel like retiring.
I’m for a 25-year term limit. My thought is, the term shouldn’t be so short that it significantly reduces the Supreme Court careers of more than a handful of Justices, but it should discourage Clarence Thomas-style gaming of the system.
Also, I’d want the influence of any one President on the composition of the Supreme Court to go away after awhile, and a 25-year limit would put a ceiling on that.
I’m not saying that any woman should be appointed over a man irrespective of specifics, but if all else is equal and you have a very qualified woman and very qualified man for a lifelong appointment, if you want to get the most ‘mileage’ out of you appointment why wouldn’t you choose the one who’s likely to live longer?
That’s not really a major qualification I look for in Supreme Court Justices. It is more so for legislators, but I’d much rather have people who assess the law and consequences in a clear, consistent manner.
I do agree with your point that there needs to be some way of moving those who are no longer capable of executing the job on (other than asking them to announce they are moving on,m which they are under no obligation to do).
I oppose life time appointments, but for reasons that are exactly the opposite of the ageism expressed in this thread. With life time appointments it makes sense to appoint judges as young as possible so as the maximize their effect on future generations. Thus a highly respected judge with a lifetime of service who happens to be say 65 years old would be rejected because he only has probably another 15 years of service in him. Far better to pick a less experienced 50 year old whose influence could extend 30 years.
And that’s sort of the problem. RBG seems to be still intellectually sharp in her 80s - she might manage another ten years of being able to perform the job intellectually (she’ll probably need more and more clerking help, but her mind is good). But other people deteriorate at a much younger age. So a strict retirement age would keep some people in the job for a longer than they should be, and cut others loose when they could still contribute.