As the 2020 campaign for the Democratic presidential nomination gets underway, a surprising policy has found its way into the national conversation: tenure of Supreme Court justices. At least five Democratic candidates, including Sen. Kamala Harris (CA), Sen. Elizabeth Warren (MA), Sen. Kirsten Gillibrand (NY), South Bend, Indiana Mayor Pete Buttigieg and former Rep. Beto O’Rourke (TX) have indicated that they are entertaining the thought.
Politico reported that many of these presidential hopefuls, interest groups and lobbyists are bitter about the virtual cessation of judicial confirmations during the last two years of the Obama presidency and then the dramatic, rapid-fire confirmation process during President Trump’s first two years. Bitterness and resentment do not lead to good policymaking, and there is probably not a more ludicrous policy proposal than this.
Alexander Hamilton dedicated the overwhelming majority of Federalist No. 78 to the subject of lifetime tenure for judges, primarily to preserve their independence from the legislative branch. Lifetime tenure was a necessary component of the new Constitution from the Framer’s historical experience under a monarchy—lifetime tenure ensured that neither a king nor a parliament could change the meaning of the law. In the American republic, Hamilton and the other Framers of the Constitution recognized that the judicial branch was the weakest branch of government and that certain safeguards were necessary to protect the sanctity of the Constitutional judiciary from the legislative and executive branches. In addition to the fact that a Congressional intervention to change the nature of the Supreme Court would be an unprecedented modification of our judiciary, defined tenure would destroy the apolitical nature of the Court.
Lifetime tenure of federal judges, while they perform their duties in good behavior, insulates them from the political process and whims of fluctuating public opinion. With lifetime tenure, justices are beholden to the Constitution instead of the people’s interpretation of it. Furthermore, Alexander Hamilton observed that lifetime tenure ensures that Court precedent and tradition would be preserved, preventing Constitutional interpretation from changing dramatically over the course of this republican experiment. In this regard, nothing has changed over the past 230 years.
That being said, there is a modern political phenomenon that has changed and is worth consideration: the state of confirmation hearings. We all watched (most likely with horror) at the behavior of Senators during the confirmations of Justices Brett Kavanaugh and Neil Gorsuch. We currently average about two new Supreme Court judges every 8-10 years, and those confirmation hearings are such embarrassing spectacles, it is a wonder why anyone would want more of them.
This unwise policy change would require a Constitutional amendment and would be incredibly unlikely to pass Congress without broad, bipartisan support. It is even more unlikely that enough states would ratify it. Nonetheless, it is troubling to note how quick Democrats are to call for changing our republic’s institutions when they perceive that they have been slighted. While I’m certainly not happy with the behavior of the contemporary Republican Party, at least it doesn’t want to edit and delete sections of the Constitution to make up for their own political failures. I would suggest that, instead of throwing out our storied institutions, Democrats running for the presidency should try to change their politics and win more elections. Democrats would do well to remember that elections have consequences and changing the Constitution because one loses them is not only unwise—it’s dangerous.
Contact Wil Stowers at [email protected]