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Debate over term limits for Supreme Court gains new life

The Hill logo The Hill 12/6/2018 Lydia Wheeler
a person wearing a suit and tie: Debate over term limits for Supreme Court gains new life © Greg Nash Debate over term limits for Supreme Court gains new life A bruising battle over the court's latest appointee and a recent health scare involving the oldest justice has renewed interest in the age-old debate over whether there should be term limits for the Supreme Court.

It's an idea that's been floated before, but senators on both sides of the aisle now say it's one that's worth discussing in public.

"I would sure love to have the debate," Sen. John Kennedy (R-La.), 67, told The Hill last week. "I don't know exactly how I would come down, but it's certainly worth talking about."

Fellow Judiciary Committee member Sen. Richard Blumenthal (D-Conn.), 72, said he's intrigued by the idea.

"The institutional stalwart inside me says no way, but, you know, we're living in a different world, literally, than the Framers ever envisioned and maybe we need to think about it," he said. "I haven't reached any conclusions yet."

Lawmakers say they are open to exploring the topic, even though they don't have term limits of their own.

Court watchers and legal experts, including Steven Calabresi, chairman of The Federalist Society, have recommended that justices serve 18-year, staggered, nonrenewable terms.

In a 2005 law review article, Calabresi and fellow Northwestern University law professor James Lindgren wrote that "the terms would be structured so that the turnover of justices occurs during the first and third year of a president's four-year term such that there will be little possibility of a Supreme Court appointment being held up by Senate confirmation in a way that deprives the president of the ability to nominate either of his two justices."

The authors' approach would have avoided what ultimately happened to D.C. Circuit Court Chief Judge Merrick Garland a little over a decade later, when then-President Obama nominated him to fill the seat left vacant by the late Justice Antonin Scalia in 2016. Republicans refused to hold a confirmation hearing on his nomination in hopes that a GOP candidate would win the White House later that year.

It was a gamble that paid off for conservatives when President Trump, 72, nominated Neil Gorsuch, who was confirmed by the GOP-majority Senate in 2017.

To impose term limits, Calabresi and Lindgren said, it would take a constitutional amendment, requiring a two-thirds majority vote in both the House and Senate and three-fourths of states to ratify.

But there is debate over whether the Constitution would have to be changed or whether term limits could be imposed by way of legislation.

Fix the Court, a group working to make the Supreme Court more transparent, is pushing for legislation that would set 18-year term limits, after which a justice would take a senior status role that would involve filling in when a justice needs to recuse themselves from a case. A justice who has served 18 years on the bench would also have the option of serving on a lower court.

Gabe Roth, the group's executive director, said the majority of Americans support restricting the length of service for justices.

A Morning Consult-Politico poll in July, conducted shortly after Justice Brett Kavanaugh was nominated by Trump, found that 61 percent of registered voters, including 67 percent of Democrats and 58 percent of Republicans, back term limits for Supreme Court justices.

The longest-serving justice was William O. Douglas, who was on the bench from 1939 to 1975. The oldest person to serve on the court was Justice Oliver Wendell Holmes Jr. He was 90 when he retired after three decades on the Supreme Court.

Any proposal, legislative or constitutional, to impose term limits would have to come before the Senate Judiciary Committee, which will be under new leadership starting in January. Sen. Lindsey Graham (R-S.C.), who is taking over as chairman from Sen. Chuck Grassley (R-Iowa), gave an emphatic "no" when asked if he supported term limits.

"I think they got it right when they first started the thing," the 63-year-old senator said.

But he said he was willing to give Kennedy a hearing to discuss it.

"If he wants one, we'll have one," Graham said.

While the court has some aging members - Justices Ruth Bader Ginsburg at 85, Stephen Breyer at 80 and Clarence Thomas at 70 - its newest members are both under the age of 55: Gorsuch is 51 and Kavanaugh is 53.

Some legal scholars argue that the framers never intended Supreme Court justices to serve for a lifetime.

Caroline Fredrickson, president of the American Constitution Society, said that becoming a Supreme Court justice used to be the crowning achievement of a long legal career.

"It creates a court that can become very out of step with the world it directs," Fredrickson said. "I fear that's a danger for democracy and for a country that relies on a rule of law and judicial review."

Instead of term limits, some on the left say Democrats should add four justices to the nine-member court if they win the White House and control of Congress in 2020.

Sen. Elizabeth Warren (D-Mass.), who is seen as a 2020 presidential contender, said she's open to the idea of discussing anything that would make the Supreme Court better reflect independent judicial ideals and not highly politicized ideology.

"We have a real problem with a Supreme Court that has become increasingly political," she said.

"There are a lot of different ideas on the table for how to get the politics back out of our court system and make the judiciary truly independent and representative of the people of the United States," she said. "I think we'll be talking about a lot of different approaches over the next several months."

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