Americans waking up this week to yet another fight over Supreme Court nominations are asking themselves, is there a better way?
The answer, of course, is yes. A plan to fix the appointment process already has the support of the vast majority (77% of Americans favor restrictions on length of SCOTUS service vs. 23% against) of the American people: ending life tenure for future justices.
What's more, this would not require amending the Constitution.
Article III states judges and justices “hold their offices during good behavior,” which historically has been understood to mean that not until death do they and their robes part. But there’s no particular reason the “office” referred to could not be interpreted as the office of federal judge.
In other words, after a justice serves a reasonable amount of time on the high court — not 30 or 35 years, as has become the norm — she could continue to serve for as long as she wanted elsewhere in the judiciary. Since 1937, when a tweak in federal law smoothed a path for retired justices to do exactly this, 11 have chosen to continue their public service on lower courts, including Sandra Day O’Connor, who left the high court in 2006, and David Souter, who retired in 2009.
Life tenure is not a rule from on high
Remember, judicial life tenure is not handed down by decree from on high. It exists in the United States because a series of 18th century English monarchs, on this and the other side of the Atlantic, were axing jurists whose decisions they objected to. That’s it.
Nearly every country whose Constitution was written in the 20th century — not to mention 49 of the 50 U.S. states — requires its top jurists to step down after a certain number of years or upon reaching a certain age. SCOTUS is an outlier.
During the founding generation, justices had few responsibilities from the bench and limited jurisdiction, but until 1911, they were required to hear cases in far-flung locales across our burgeoning country — an exhausting and treacherous proposition before the advent of modern modes of transportation. Some members couldn’t leave the court fast enough.
Serving on the Supreme Court today is akin to being a rock star, maybe even a monarch. You’re wined and dined and flown around the world. An entire segment of the population hangs on your every word, and entire segments of the population are impacted by your every keystroke. It’s a different job, and we’re a different country.
Power of SCOTUS: Ginsburg flap shows Supreme Court, justices are too important
With Republicans in the Senate having the votes to confirm President Donald Trump’s nominee, Democrats might not be able to stop a conservative jurist from becoming the next Notorious ACB (Amy Coney Barrett). But they can join with their conservative colleagues who have long embraced the concept of term limits and ensure that never again will a superannuated bench determine the direction of our country.
How tenure could be changed
To start, Congress would pass a law whereby a new justice would be added to the court every other year. That way, each presidential term gets two, and vacancies would become more predictable. If the goal is a nine-justice court, that means future justices (9x2) would have terms of 18 years.
“If there were a long term, I don’t know, 18, 20 years, something like that, and it was fixed — I would say that was fine,” to quote Justice Stephen Breyer. To avoid constitutional concerns — they signed up for a limitless job — Breyer and his seven current colleagues would be exempt.
Changing SCOTUS: Packing Supreme Court or expanding it? There's a difference.
After their terms, a prospective justice would have the option to serve on a different federal appeals court, and — this is critical in light of recent events — they’d be able to return to the high court in the case of a sudden vacancy. Full strength. Less gamesmanship. No partisan advantage.
Throughout American history, Congress has used its constitutional power to change the roles and responsibilities of our courts. Lawmakers are well within their rights to again change the role of our nation’s top jurists, consistent with their understanding of the Constitution.
You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to firstname.lastname@example.org.
This article originally appeared on USA TODAY: Supreme Court Justices: Give them term limits instead of life tenure