Baseball Crank
Covering the Front and Back Pages of the Newspaper
September 7, 2005
LAW: The Chief Is Dead, Hail To The Chief

President Bush's rapid announcement on Monday that he will nominate John Roberts to be the next Chief Justice, rather than an Associate Justice, made all sorts of sense. First, an extended period in which the president theatrically mulls the decision is a luxury that can't be afforded now, with the Court's 2005 term a month a way and attention focused on the aftermath of Hurricane Katrina. Second, I have not located the statutory authority for this, but I understand that, by law, an open Associate Justice's slot can not be filled until after the Chief Justice has been seated. (SCOTUSBlog explains why the two nominations are distinct). Third, Roberts has the momentum behind his nomination, which Bush doesn't want to stall. Fourth, the Roberts pick can easily be justified on grounds of merit: Bush obviously picked him in the first place because he thought he was the most qualified guy available.

Oddly, given the incidence of Justices hanging on past their ability to serve, Jim Lindgren notes that Chief Justice Rehnquist is the first Justice to die while still on the Court since his former boss, the brilliant Justice Robert Jackson, in 1955.

On a related note raised by John Fund: while I don't expect the Constitution to be amended any time soon, I do think if we were rewriting the rules now from scratch, it would be prudent to have a 25-year term limit for Justices. 25 years is long enough to almost approximate the term in office of many Justices in the modern era. A fixed term in office would have a few advantages:

*Ensure regular turnover on the Court, thus improving its responsiveness to changes in public opinion (while I believe the Court should mainly follow fixed and determinable principles for interpreting the Constitution, I'm not naive enough to think we are there yet, and even so there are always some issues on which the Justices have no choice but to bring their world view into the analysis)

*Ensure predictable departures and prevent gamesmanship over when Justices will retire. No more debates over "hanging on to the next term," and elections in which everyone knows a vacancy is due.

*Reduce the incentive to appoint artificially young Justices. All things being equal, there will often be better candidates in their late 50s and around 60 than candidates in their early 40s. Life tenure, though, creates incentives for each party to tilt its picks towards younger candidates.

Posted by Baseball Crank at 8:04 AM | Law 2005 | Comments (3) | TrackBack (0)

I've seen it suggested that they serve staggered 18-year terms, guaranteeing that there is an open seat in every non-election year. I think that makes a lot of sense.

Posted by: Jerry at September 7, 2005 8:32 AM


Believe Jeff Jacoby came up with that idea. He has been pushing it for a while. I understand the arguments for term limiting judges but not sure it will solve all the problems we think it will. 50 some years ago we enacted term limits on presidents because FDR got too powerful through his length of time in office. However, we failed to consider the lame duck problem which resulted from that change. Personally, I think the lame duck thing would be less a problem in the judiciary or legislature.

Posted by: LargeBill at September 7, 2005 11:00 AM

I think as long as the system provided for long terms on the bench (which 18 or more years is) and no possibility of re-nomination, it wouldn't really have a downside. Whether it would actually improve the system a lot, or only a bit, would probably take time to see.

Posted by: Jerry at September 7, 2005 12:27 PM
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