A Simple Proposal To Make Supreme Court Appointments More Fair

With the current debate over the latest nomination for U.S. Supreme Court justice, the topic of term limits for justices has made its way back into the headlines – with proposals for a 15, 18 or 20 year term to replace the current lifetime tenure.

The pro-term limits side has some strong points. First, Supreme Court justices (like all Americans) are living longer now compared to 220 years ago when the Constitution was written. Before 1970, the average length of service of a justice was 16 1/2 years, while the average length of service since 1970 is over 25 1/2 years. Second, nominating younger justices has become a tool to try to control the court for a longer period of time. Third, the period of time between vacancies is relatively random, so some presidents get more appointments than others – William Howard Taft picked five justices during his single term while Jimmy Carter did not have a single opportunity during his four years in office.

The average length of time between court vacancies has also been increasing. Before 1970 the average time between appointments was 1.9 years; since 1970 the average time is 3.75 years. In fact, between 1994 and 2005 there was a nearly record-setting 11 year gap between Supreme Court vacancies.

The main problem with proposing term limits for Supreme Court justices is that it would require amending the Constitution–and that is just not going to happen. However, the size of the Supreme Court is not specified in the Constitution and has been changed by the Congress a half dozen times in our history.

So here is a simple proposal that could be immediately implemented. Allow the President to appoint one new Supreme Court justice every two years regardless of whether there is a vacancy on the court. This would even out the randomness of Supreme Court appointments. The voters would know that each president they elect would get exactly two appointments per four-year term – no more and no less. The Senate would have confirmation hearings once every two years. Then, if the current justices want to keep serving the court could grow to ten, eleven, twelve or more justices over time but is there anything wrong with that?

In the 220 year history of the U.S. Supreme Court there have been 110 justices appointed. That is, on average, one every two years. Let’s just make that the norm and even out the inequities due to chance.

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