Atoning for Garland: An 18-Year Gorsuch Term

After taking the unprecedented step of denying a president the opportunity to fill a Supreme Court vacancy during his term, the Senate majority now stands on the brink of another: invoking the nuclear option. Judge Neil Gorsuch finds himself at the center of this historic aberration, his candidacy itself—and now his likely appointment—a byproduct and reflection of a complete breakdown in political norms and traditions.

Just because the breakdown is indefensible[1] and inexcusable does not mean it is unexplainable: the political stakes on both sides are enormous and are increasingly viewed as existential. In fact, given the power of Supreme Court seats to define the direction of the country for a generation, it is some wonder this collapse did not come sooner. And here, perhaps, is where Judge Gorsuch could do some useful precedent-shattering of his own and make the asterisk by his name in the history books a more positive one: he could agree to serve an 18-year term.

The immense political pressures that surround the nomination and appointment process are a direct result of the influence and unpredictability of the Justices’ lifetime terms. Lifetime tenure on the highest court in the land is a rarity on the world scene, and hardly necessary to secure judicial independence. (The Framers gave Supreme Court Justices life tenure in an era when the average American could expect to live only thirty-five years.) Instead, as Calabresi and Lindgren propose, the Justices could serve staggered 18-year terms, with vacancies occurring at the beginning of the summer recess in every odd-numbered year (occurring during the first and third year of a President’s four-year term).

If Senators knew that each President would have the opportunity to appoint two Justices—no more, no less—during each term in office, then the stakes at each confirmation would recede. And, as a matter of principle, it seems far more defensible for each President to have the same impact on the judiciary. (Why, for example, should it be that Clinton, Obama, and both Bushes only had two appointments, whereas Reagan and Nixon each had four?)

The difficulty with instituting judicial term limits is that no party will unilaterally disarm when their President is in office. Even if both parties agreed with the concept in theory, neither party is likely to push for a constitutional amendment while they hold the keys to the Court. This is why nothing like this seems to be on the horizon.

And this is precisely why Judge Gorsuch could—and should—take on the task. While a politically prescribed system of term limits might be preferable, judicial traditions could replace (and outlast) those crumbling in the political branches. As an uninvited beneficiary of broken political precedents, Gorsuch is uniquely placed to set down new judicial ones. Only eight other individuals would then need to be convinced that lifetime Supreme Court terms have evolved from a bulwark of democracy into an albatross.

In our nation’s infancy, President George Washington independently decided to retire after two terms, beginning a tradition that would last until 1940 and be preserved by constitutional amendment just a decade later. At a time when precedents, traditions, and norms are collapsing at an alarming rate in the face of unbridled partisan power, it would be notable for someone to forgo their own interests for the good of the country. Perhaps it’s naïve to even entertain such a hope. After all, the decision would surely be unprecedented.

 

[1] The rule that there should be no appointments during “an election season” runs into some pretty thorny questions pretty quickly. When does the “election season” begin? Does the rule apply based on the occurrence of a particular event? If so, is Trump’s filing with the FEC and decision to hold campaign-style rallies already enough?  Or does it require a formal announcement?  If so, can a candidate formally announce and thereby invoke the new rule starting today?  Or, if the rule is just based on time rather than a specific event, is it a one-year rule?  Is it a two-year rule?  How long is an “election season,” exactly? The reality, of course, is that there is no “principle” behind what happened to Judge Garland – it was pure politics. (One can hardly imagine the same Senate majority insisting on honoring this “election season” principle were another Justice to retire or pass away in the run up to the 2020 election.)