It didn’t get a lot of attention, what with the horror stories from Afghanistan and the Texas border, plus the fiscal mess in Washington, but a plan to fundamentally change the U.S. Supreme Court emerged in Congress last month.
The idea is to make sure President Biden gets some chances to diminish the court’s 6-3 conservative tilt. Republicans are likely to take over Congress next year and Democrats don’t want a replay of the Merrick Garland nomination, which the GOP blocked for more than a year in hopes of having a Republican president pick someone else.
Which, of course, is what President Trump did.
So Rep. Ro Khanna, D-Calif., and a handful of young liberals introduced a bill last month mandating 18-year term limits for the justices. Any nominee the Senate does not act upon in 120 days (looking at you, Mitch McConnell) would be automatically confirmed, under the bill.
Presidents would appoint one justice in odd-numbered years, assuring each president two choices. After 18 years, old justices would assume “senior” status, and they could return to service if an active justice died or was otherwise disqualified. The justice most recently put on the senior list — likely the youngest of the codgers or codgeresses — would fill the seat.
“There is broad support among the American people for reform, and this bill would be a meaningful step toward standardizing and democratizing the Supreme Court,” Khanna said in announcing his legislation.
Which is precisely what’s wrong with it.
Tempting as it may sound, we don’t need “democratizing” of the judiciary. The legislative and executive branches are popularly elected; judges shouldn’t be.
On race relations, gun regulation, religious freedom, capital punishment, abortion and so many other issues, judges have had to make rulings the public would never support. Sometimes they free clearly guilty criminals whose rights are violated.
Lifetime appointments make that possible.
And besides, term limits have never made anything better. Have Florida laws improved because we voted for the “Eight is Enough” limit on legislators in 1992? Has the two-term cap given us better presidents than Franklin Roosevelt?
FDR called the court “the nine old men” when it struck parts of his New Deal. But age and longevity weren’t the problem then and term limits aren’t the answer now.
Throwing away a perfectly good public official just because a certain time has passed makes no more sense than keeping incompetents just because they’re new.
Oh, it feels good to kick the shins of the high and mighty, to show them who’s boss. But the law should be sacred, removed from partisan prejudices.
Of course it’s not.
That’s why Democrats want 83-year-old Justice Stephen Breyer to go play croquet and watch Lawrence Welk reruns, so Biden could replace him and the Senate could confirm his successor while Democrats still hold a one-vote edge.
It’s never been explained why the Democrats might have felt better if McConnell had called a vote on Garland in 2016 and the Senate had rejected him, as it clearly would have done. But the bare-knuckle partisanship of that experience still stings, and Biden’s allies want to salvage something — anything — before losing control of Congress next year.
Incidentally, just how would term limits immunize the judiciary from politics? A Trump would still appoint conservatives and a Biden would appoint liberals.
If we’re worried about outside personal influences, it seems likely justices who reach 14 or 16 years on the court will start thinking of their next job — maybe joining a big law firm — and some might be tempted to tilt the scales accordingly.
Presidents will always keep politics high among criteria for all their appointments, and the Senate will vote politically, regardless how long someone can hold office. It would be nice if they thought only of legal scholarship, experience and personal character in selecting judges.
But then, it would also be nice if we elected our presidents and members of Congress for their ability to govern, rather than their ability to raise great gobs of money, pander to special interests and look good on TV.
Congress won’t impose term limits on itself — and it shouldn’t — so it would be wise to let the court continue to reign supreme too.
Bill Cotterell is a retired Tallahassee Democrat capitol reporter who writes a twice-weekly column. He can be reached at bcotterell@tallahassee.com
