President Biden has promised to nominate an African American woman to replace retiring Associate Supreme Court Justice Stephen Breyer. The U.S. Supreme Court is generally accepted as having a liberal wing: Breyer, Sonia Sotomayor and Elena Kagan; and a conservative wing, Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch. Chief Justice John Roberts and Brett Kavanaugh vacillate but tend toward the conservative side.
The liberals were nominated by liberal Democrat presidents and the conservatives and semi-conservatives were nominated by conservative Republican presidents. Each American president was elected by majority popular vote and the Electoral College. The philosophies and political positions of each president were well known to the electorate beforehand via contested campaigns. Most voters are aware the members of the Supreme Court, and all other federal judges, are nominated by whoever the president in office is whenever there is a vacancy on a federal court or when a newly created court needs a judge.
But whereas our presidents, due to the 22nd Amendment to the Constitution, may serve only two, four-year terms, Article III section one of the Constitution provides federal judges … “[s]hall hold office during good behavior.” Although it has never been tested, this provision has normally been viewed as providing life-time tenure for federal judges. And since the U.S. Supreme Court under the guidance of Chief Justice John Marshall in 1803 took for itself the power to determine what our Constitution means, if the issue arises the members of the Supreme Court will themselves decide if they should have life-time jobs. See Marbury vs. Madison (1803), 5 U.S. 137.
Therefore, the Constitution might have to be amended to set term limits for federal judges. However, we have amended our founding document twenty-seven times already so we could do so again. An amendment takes a vote by 2/3 of each body of Congress and ratification by 3/4 of the states. That is how women finally got the right to vote and we all got numerous other rights such as Freedom of Speech.
The debate over whether Supreme Court justices are political is vacuous. They are chosen via a political process. They represent a third branch of our political system. We casually identify the justices as liberals or conservative or swing votes. The Supreme Court is a political creation and remains a political part of our democracy, by design. The issue we should be discussing is what is good for America and the answer is limited terms for federal judges. If a president can be elected because of her or his policies then replaced no later than eight years later by someone with different views and a different background, so should courts have their particular perspectives and prejudices evolve every few years. We should not have to wait for Mother Nature to get new and diverse views from justices and other federal judges.
Judges, just like every other human, have prejudices and political leanings. That is not only to be expected but should be celebrated in our democracy. The fact, and it is a fact, that every judge brings her or his background to the Bench should not be news. However, America needs to protect itself from entrenched partisan views being cast in biological stone. A ten-year term for all federal judges is 25% longer than a president’s maximum allotment. Ten years is plenty and if we provide a life-time pension for ex-judges as is already set out in 28 U.S. Code §294 we should have no problem getting qualified judges to serve.
So wise.