Politico/Morning Consult have some polling data out, taken after the Kavanaugh SCOTUS pick, and sixty-one percent support term limits for Supreme Court justices- and support crosses party affiliation, with two-thirds of polled Democrats and 58% of Republicans in favor. 20% overall oppose limits.
Sixty-one percent of voters support term limits for Supreme Court justices, including two-thirds of Democrats and 58 percent of Republicans. Twenty percent overall oppose such limits, according to the survey of 1,991 registered voters.
“It’s important to have justices who are reflective of the population they’re bringing judgment upon,” said Gabe Roth, executive director of the group Fix the Court, in a Tuesday interview. “Before Kennedy retired, we still had justices who were appointed during the Reagan administration. A lot’s changed in the world since the Reagan administration.”
Fix the Court, a nonpartisan advocacy group, is pushing a plan that would place an 18-year limit on a judge’s term, which would start as current judges leave and new ones come in. Roth said despite momentum in the legal community and among many Americans in support of term limits, there is no such movement on Capitol Hill and a number of legal scholars argue such changes would require a constitutional amendment.
“Since the post-Watergate Ethics in Government Act that required justices to release their financial disclosure reports, there has been little action in Congress to change the institutional structure of courts,” he said.
Josh Blackman, a constitutional law professor at South Texas College of Law Houston, said while there is support for term limits, the challenge is in how to implement them – whether they are made retroactive or exclusively apply to future nominees.
“If you make it forward-looking, it would take literally 30 years for it to actually make any impact,” he said in a Tuesday interview.
I propose an amendment to the Constitution of the United States of America:
Section 1. The number of Justices serving upon the Supreme Court of the United States shall be nine, including the Chief Justice.
Section 2. Upon the vacancy of any seat on the Supreme Court, the Attorney General or such other officer as the President may designate shall convene a Selection Committee.
The Selection Committee shall consist of three Chief Justices of the Supreme Courts of the several states, chosen by lot, and four Presiding Judges of the several Federal Courts of Appeal, chosen by lot. In the event of a vacancy or a refusal of a chosen member of the Selection Committee to serve, the Chief Justice or, if there is no Chief Justice the most senior member of the Supreme Court, shall appoint a replacement from the same pool of potential members as the selected committee member not serving.
The Selection Committee shall meet and propose three candidates to the President to fill the vacancy upon the Supreme Court within thirty days of the vacancy. No member of the Selection Committee may themselves be proposed as a candidate.
Section 3. Within thirty days of his receipt of the Selection Committee’s three candidates, the President shall nominate one of those three candidates to the Senate.
The Senate shall convene if not then in session, and approve or disapprove of the proposed candidate within thirty days of the President’s proposal by a majority vote. In the event of the Senate’s rejection of a nominee, the President shall thereafter propose from the remaining proposed candidates within thirty days of the Senate’s rejection, and the Senate shall then approve or disapprove of the proposed candidate within thirty days of the President’s nomination by a majority vote.
If for any reason the Senate fails to act in response to the President’s nomination, the nominee shall be deemed confirmed, effective on the thirty-first day after the nomination is made.
If all three nominees are rejected by the Senate, or the Senate by majority vote indicates that none of the three proposed nominees will be acceptable, a new Selection Committee shall be convened within thirty days.
Section 4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Would this help or hurt? I’m trying to ratchet down, but not completely eliminate, the role of politics in the process of selecting Supreme Court nominees. And yes, I’m proposing tying the President’s hands a lot and the Senate’s hands at least a moderate amount. For instance, by prohibiting court-packing in section 1.
Lori A. Ringhand and Paul M. Collins write in the Chicago Tribune that while the Garland/Gorsuch/Kavanaugh headlines have stirred up the intellectual exercise of imposing change, the concept of SCOTUS term limits is liable to be just that.
The final argument against term limits may be the most important: They may be impossible to implement. Creating legally enforceable Supreme Court term limits would almost certainly require amending the Constitution. That’s unlikely to happen any time soon. Any solution short of a constitutional amendment would require getting justices and senators to agree to change the norms and customs governing retirement and confirmation. In other words, they would have to voluntarily agree to play by a new set of rules. Given the state of politics today, that may be too much to ask.