Thursday, April 14, 2005


Just ran across this from last Friday's Wall Street Journal -- an article by two Federalist Society apparatchiks arguing for Supreme Court term limits:

... The current Court is a gerontocracy--like the leadership cadre of the Chinese Communist Party.

...With justices now staying 10 years longer than they have historically, vacancies are opening up a lot less often. Between 1789 and 1970 there was a vacancy on the Court once every 1.91 years. In the 34 years since the two appointments in 1971, there has been a vacancy on average only once every 3.75 years. The typical one-term president now gets to appoint only one instead of two justices, and with the recent 11-year drought of vacancies a two-term presidency could in theory go by without being able to make even a single Supreme Court appointment.

We think this is unacceptable....

For these reasons, over the past few years we have been advocating a constitutional amendment that would limit the justices to an 18-year term with one seat opening up every two years. Tomorrow, a conference of scholars (most of whom are committed to this idea) will meet at Duke Law School to discuss various proposals for such an amendment. Our amendment would not apply to the currently sitting justices or to the current president and would go into effect when a new president takes office in 2009....

Yeah, nice idea: Let's hobble subsequent presidents this way, but allow Bush's appointees (who'll probably all be in early middle age at the time of confirmation) to stay on the court for life, along with Clarence Thomas (56 as I write this). Thomas could literally outlast some of his successors, who might have to resign in the late 2020s (when he'll be around 80), and anyone appointed by Bush almost certainly will outlast appointees of the next president.

Sound fair to you? Why do I suspect this op-ed wouldn't have run and the Duke conference wouldn't be taking place if the November election had gone a bit differently?

Incidentally, here are the terms of service, in years, of some of the best-known Justices of the Supreme Court (source: World Almanac): John Marshall 34; Roger Taney 28; John M. Harlan 34; Oliver Wendell Holmes 29; Louis Brandeis 22; Hugo Black 34; Felix Frankfurter 23; William O. Douglas 36; Thurgood Marshall 24. Did they all outstay their welcomes?

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