Please ensure Javascript is enabled for purposes of website accessibility

One cause of the Kavanaugh mess: Lifetime tenure for justices

The nation is divided over the outcome of Brett Kavanaugh’s nomination to the Supreme Court but remarkably united in viewing the confirmation process itself as a debacle. The elegant constitutional drama plotted by the Founding Fathers played out as a teenage sex farce. It was beneath the dignity of our national institutions.

What produced this bizarre moment in American history? Republicans blamed Democrats for late-breaking accusations of long-ago misconduct. Democrats blamed Republicans for refusing to abandon a flawed nominee. Instead of assigning blame, let’s explore why the situation spiraled out of control.

I submit the meltdown resulted from desperation. Republicans were desperate to fill a vacant seat on the Supreme Court with one of their own. Democrats were desperate to deny Republicans that triumph. Both sides were feverishly determined to succeed because the stakes in this fight were so high – too high, in my view.

Kavanaugh, a healthy 53-year-old, is entitled to serve on the Supreme Court for the rest of his life. Actuarially, he can be expected to serve for at least 25 years, but with advances in medical science and the excellent care justices receive, he may well serve longer. The average tenure of justices who retired before 1970 was 14.9 years but has doubled since then. William Rehnquist served for 33 years and John Paul Stevens served for 34. Clarence Thomas, appointed to the court at 43, has served for 27 years and is still a relatively young 70 years old.

As one of only nine justices, Kavanaugh will wield immense power to shape American law during his decades of service. Succeeding swing vote Anthony Kennedy, Kavanaugh will have an immediate impact and then a lasting influence on women’s reproductive choices, civil rights, presidential power and many other issues. His elevation is easily more consequential than the election of a congressman or a senator, and arguably rivals the election of a president who, under the 22nd Amendment, may serve for only two four-year terms.

The lengthening tenure of justices has intensified the Supreme Court confirmation process. These have become white-hot battles with the accoutrements of modern political campaigns – polling, advertising, fundraising and scorching media attention. This supercharged atmosphere is prone to explosions.

New rules

A recent change in the Senate rules makes a bad situation worse. Through much of American history, judicial nominations could only move forward with bipartisan support. But in 2005, Republican leaders threatened to alter the rules to allow judges to be confirmed by a simple majority, or a party-line vote. That so-called “nuclear option” to speed nominees of President George W. Bush was sidelined by a bipartisan group of moderate Senators. In 2013, Democratic senators who earlier opposed the nuclear option unwisely deployed it themselves to advance President Barack Obama’s lower court nominations. Finally, last year, GOP senators drove the last nail in the coffin by applying the Democrats’ 2013 rules change to Supreme Court nominations in order to confirm Neil Gorsuch.

Under the new rules, the Supreme Court confirmation process is now a partisan winner-take-all battle. When the president’s party lacks a Senate majority, his nominees may suffer the fate Merrick Garland whose nomination died without a hearing in 2016. But when the president’s party enjoys a Senate majority, his nominees may move forward without significant bipartisan support – creating the frustration that ignited the Kavanaugh conflagration.

Commentators sometimes speak of Democratic or Republican justices, referring to the party of the appointing president. Now the appellation may mean that the judge was appointed by a president of one party and confirmed only (or largely) by senators of the president’s own party. When such a court splits along “party lines” in high-profile cases, the court’s reputation as an apolitical body suffers.

Alarmed by these developments, some legal scholars have come to favor limits on the justices’ length of service. Proposals formulated by Duke Law professor Paul Carrington, Northwestern Law professor Steven Calabresi and others would establish 18-year terms for Supreme Court justices, with regular staggered appointments to blunt the impact of any one president on the court. To preserve judicial independence, justices would continue to receive their judicial salary for life and, in some proposals, could serve on lower federal courts after leaving the Supreme Court.

These proposals would require statutory change or a constitutional amendment, causing commentators to dismiss them as unrealistic. But the bitter struggle over Kavanaugh, which has repulsed combatants on both sides, strengthens the call for reform.

The Maryland model

Those of us familiar with the Maryland Court of Appeals know there is a better way. The process by which judges come to sit on that widely respected, nonpartisan court has none of the rancor or spectacle of its federal counterpart.

After receiving recommendations from a Judicial Nominating Commission, the governor submits a nomination to the state Senate. Even though the current governor is a Republican, his appointments have received respectful consideration and drama-free confirmation from the Democratic-controlled Senate.

The key ingredient of this gratifyingly low-key appointment process is that judges on the Maryland Court of Appeals do not receive life tenure. They serve 10-year renewable terms but only until they reach the mandatory retirement age of 70.

The Maryland system has its own flaws. First, judges must stand for “continuance in office” after appointment. While that election is uncontested and judges are routinely continued, any judicial election undermines the principle of judicial independence. Second, mandatory retirement is set too low at 70, an age at which today’s judges typically remain sharp. The Maryland constitution should be amended to raise that threshold.

But even if Court of Appeals judges served for a few more years before retiring or assuming senior status, their influence would remain more modest than Supreme Court justices. As a result, the extreme desperation that grips Washington during a Supreme Court confirmation process is absent in neighboring Maryland.

Mandatory retirement would be one way to establish term limits on Supreme Court judges, but it would create an incentive for presidents to appoint very young justices. We may also need a minimum appointment age. The Constitution already sets a minimum age of 25 for House members and 30 for Senators, so the concept is not alien. Maryland Court of Appeals judges must be at least 30 years old, but I would be comfortable with a much higher minimum age for Supreme Court justices – one that had the effect of limiting service to less than 20 years on the high court.

One way or another, through statute or constitutional amendment, we must lower the stakes and therefore lower the temperature on the Supreme Court confirmation process. This is a democracy, not a cage match.

Ronald Weich is dean of the University of Baltimore School of Law. His previously served as an assistant attorney general in the U.S. Department of Justice during the Obama administration and as chief counsel to U.S. Senate Majority Leader Harry Reid and Sen. Edward M. Kennedy.