The Politics of Lifetime Appointments

The Politics of Lifetime Appointments – As people ask about Justice Ginsberg‘s retirement, the idea of Lifetime Appointment is no longer insulating the Judiciary from political gamesmanship.

– Christopher Carroll

Lifetime appointments are not insulating the Supreme Court Justices from politics.  We should stop pretending that it does. Unusually intense national attention on the Supreme Court, driven by recent high profile Court decisions, has left many people asking a question with serious political ramifications: when will Ruth Bader Ginsberg call it a career?

The 80 year-old Ginsberg has led the liberal-leaning Justices since her appointment to the Supreme Court in 1993. She has been the champion of liberal ideology on the Court since the retirement of Justice Stevens in 2010, himself 90 years old when he hung up the robes. But with a democratic president in his second term, many a questioning when the best time for Ginsberg to retire might be whilst ensuring a solidly left-leaning Justice takes her place. Many people are starting to think that this could be that time.

Justice Ginsberg, to her credit, vociferously disagrees, believing that she will not step aside to accommodate President Obama’s desire to fill her seat so long as she is still mentally and physically “equipped to do the job.” But, as Jamelle Bouie astutely discusses in a July 5th (link#3) Washington Post opinion piece, the questions over Ginsberg’s retirement raise an undeniable problem, the practice of lifetime appointment doesn’t seem to work anymore.

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Lifetime judicial appointments have been a hallmark of American Supreme Court law ever since it was vociferously argued for by Alexander Hamilton in Federalist #78. The intention of the practice was to protect the Judiciary from the Legislative and the Executive branches of the government and the popular opinion of the public. Without strong systemic protection, Hamilton feared that Judicial Review would cease to be based upon the Constitution, compromising the important role the Supreme Court has played in the balance of power in American democracy.

Lifelong appointments have certainly contributed to the Supreme Court’s extremely stable, authoritative and legitimate history in American democracy. However, it is telling that very few nations around the world have followed the American example. Perhaps they foresaw what Hamilton and the Founders did not: that even with lifelong appointments, judicial review and judicial appointments are extremely political.

It must be noted that those people calling for Ginsberg’s retirement are making a political miscalculation. Those who believe that Obama, a centrist by the account of many liberals, will pluck a younger version of Ginsberg from the sea of qualified individuals have not been tallying recent political history and are wrong for two reasons. First, it won’t happen, and second, Obama isn’t the type.

First, passing Judicial nominations has been historically difficult for this administration due to the misuse of the filibuster. There are countless important seats on important benches left currently unfilled because nominees cannot get a vote. Harry Reid’s moaning and “nuclear option” threats have thus far fallen on deaf ears. Additionally, using the “nuclear option,” a method of changing filibuster rules in order to pass confirmations with a simple majority, would do more damage to the legitimacy of the Court than any other action.

English: Harry Reid (D-NV), United States Senator from Nevada and Majority Leader of the United States Senate (Photo credit: Wikipedia)

Silent Filibuster – Senate (Photo credit: DonkeyHotey)

Second, President Obama has shown time and again that he is both a centrist and uncomfortable with controversial nominations. Every time he has picked (or even been rumored to pick) a high profile and polarizing figure to high office, he has backed off in the face of Republican outrage – see Susan Rice’s Secretary of State saga and the President’s failure to aid Sec. of State Chuck Hagel while in the confirmation process.

These two oversights aside, the debate over Ginsberg’s retirement is showing the nation that lifelong appointments no-longer insulate the Supreme Court from politics. Today, the President’s attempt to gain as much influence as possible by appointing the youngest judges they deem qualified, resulting in a highly polarized judicial body. Today, Justices are being asked when they will step down, not because their mental facilities are failing but because it is more convenient for one or another political party. Today, if Hamilton were alive, he would cringe. Today, though the Judiciary was meant to be a-political, it has become hyper-political.

Is it time to amend the Constitution and abandon lifetime appointments? Is it time to institute an age limit for Justices? Is it time to institute an age minimum for Justices? Whatever one’s particular feeling about these ideas, none are likely to be accomplished in the near or even distant future. Amending the Constitution is a uniquely difficult proposition (link#7), made harder by the hyper-polarized nature of the Senate and the House. But acknowledging that we have a problem is the first step.

Justice Ginsberg remains an extremely capable, intelligent and brilliant adjudicator who, with luck, will continue to serve this country with distinction. If President Obama and Democrats are worried about who will replace her, they should instead focus on Congressional and Senate elections and leave the Justices charged with checking the other two branches alone. When Ginsberg needs to retire, she will. Democrats shouldn’t try to force out a brilliant mind simply because this moment is easy. This moment, with this President and with this Congress, might be exactly the wrong time.