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Controversy: Supreme Court Justice Terms

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Essay title: Controversy: Supreme Court Justice Terms

An impending issue currently involves the terms of the U.S. Supreme Court Justices. They are enjoying extended stays on the bench due to an increase in life expectancy. In fact, Justices are now serving an average of 26.1 years before retiring or death—twelve years longer than they did when the average span of a judge’s tenure was roughly fourteen years. Therefore, a proposal has been offered that addresses this concern. Under this proposal a judge would serve a term of ten years; after ten years the Justice would be eligible for re-appointment by the President upon approval of the Senate. This proposal has the benefit of limiting a Justice’s time on the bench, but that is outweighed by the proposal’s flaws. Therefore, a second proposal of life tenure with limited bench sitting has been proffered which may offer a better solution.

The United States Constitution calls for a Justice to serve for life with impeachment a threat only on the basis of a lapse in good behavior. Judges are to be judged solely on their merit not on the decisions or judgments they make. From 1789 to 1970 the average tenure of a Supreme Court Justice was 14.9 years. Because of average life expectancy since 1970 that has jumped to 26.1. This allows for unchecked power on the bench because the Supreme Court is the highest and undisputed law of the land.

There has also been an issue involving the lack of vacancies on the court. At the end of the October 2004 term those current nine members had served together for eleven years, more than any other set of judges in U.S. history (Calabresi, Lindgren). Since there has been a lack of vacancies, few Presidents have been able to set the course of the courts by appointing like-minded judges; in years prior to 1970 judges were appointed roughly every two years. This undermines the efficiency of the democratic checks and balances. It also prevents the infusion of ideas that spring from the generational interest of the time. If every president was able to appoint a judge then it is highly probable there will be more cultural diversity on the court. There would be younger judges on the bench with a mindset more nearly reflective of the interests and issues of a newer generation. Another concern of the current situation is that the judges are serving much longer than their minds would normally allow, seeing as how some judges are serving well into their eighties. “The history of the Court is replete with repeated instances of Justices casting decisive votes or otherwise participating actively in the Court’s work when their colleagues and/or families had serious doubts about their mental capacities” (Garrow, David). And during the twentieth century the problem has multiplied. How are judges to base constitutional decisions rationally when their minds may not be so rational? Chief Justice Rehnquist continued to serve in office (for nineteen years) while regularly abusing the drug Placidyl. Justice William O. Douglas continued to serve on the court even after suffering from a stroke and many had questioned his capabilities. So to eradicate the life long tenure would surely eliminate the problem of judicial senility and possible decrepitude.

In hopes of eliminating these problems it has been proposed that the President appoint a Justice and the Senate confirm the candidate for a term of ten years, after which they may be eligible for re-approval. In approving this bill it is more likely that the current cultural or generational issues will be addressed and handled with more care. With fresh, modern minds the Justices may take a progressive stance and decide on a more liberal interpretation of the terms of the constitution—thus, it is hoped, overruling Justices who tend to view the Constitution with an older, more conservative point of view. Instead of seeing issues related to the Constitution as merely black or white, the shades of grey will be addressed with more care. A modern perspective will more than likely prevail under those circumstances.

Another benefit of this proposal is that more Presidents will be able to appoint Justices, which eliminates the problem of vacancies and gives each President influence over the court. Perhaps every one will leave a Justice who might apply and defend his or her political views beyond the term of the Presidency. To achieve this end under the current system, Presidents have been appointing younger Justices to the bench “(T)he regular rotation might also reduce the incentive Presidents now have to appoint young justices who can extend their appointing President’s influence over the court for decades” (Mauro, Tony).

Although the current proposal has many benefits, the cons appear to outweigh the pros. A simple argument is this: The court is the highest law of the land therefore they should not have to be reappointed. And what problems will arise from re-appointing

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