Balkinization  

Thursday, April 21, 2005

Learning From the Conclave

Sandy Levinson

Many things can be said about the choice by the conclave of cardinals of 78-year-old Joseph Cardinal Ratzinger to be the new Pope. One of them is that the cardinals, for all of their deep (and probably sincere) devotion to the departed John Paul II, expressed its deep desire that there be no possibility, barring what would truly be miraculous, of another quarter-century reign by his successor. The Catholic Church may, like the U.S. federal judiciary, be committed to life tenure, but the cardinals have done whatever they could to limit the actual term of service. Would that the United States Senate learn a lesson from what has just happened in Rome.

William Rehnquist has served on the Supreme Court for over a third-of-a-century; he has been Chief Justice for almost two decades. Consider his two predecessors: Earl Warren was on the Court for only fifteen years, from 1954-1969; Warren Burger retired in his seventeenth year, in 1986. This in fact is quite close to what a recent paper by Northwestern law professors James Lindgren and Steve Calebresi has demonstrated is the mean length of service of Supreme Court justices from 1790-1970, approximately sixteen years. Since then, however, the average term is over 26 years. Even if one defends life tenure on the Supreme Court—an idea that I and many others believe is an idea whose time has gone—there is no defense whatsoever for the ever-increasing length of actual terms.

Much has been written about the battles sure to be waged when Rehnquist steps down. Almost all of the anticipatory salvos have involved the ideologies of prospective nominees. Might Congress not pay some attention, however, to the age of the nominee? For example, Democrats should insist, as a price for their support or, at least, non-filibuster, that the nominee be at least 60, preferably 65.

There is something to the argument that winners of elections, especially if their party also controls the Senate, should have some leeway in packing the judiciary, including the Supreme Court, with ideological friends. There is nothing to the argument that that packing should extend literally a generation. My own preference would be that Supreme Court justices could serve an 18-year (non-renewable) fixed term. That would obviously allow a president to “pick young” (as with William O. Douglas or Clarence Thomas) or “go old” (as with Lewis H. Powell or Harry Blackmun). In the absence of such a sensible change, however, the only thing that the citizenry can do is to demand that youngsters wait their turn, not necessarily because there isn’t anything to be learned from the (relatively) young—there most certainly is—but because a sensible country would not appoint justices to de facto 30-year terms.

The cardinals in Rome were able to learn from experience and sent a very strong message in their choice of the elderly Ratzinger. Ironically, the oldest member of the current Supreme Court is the 85-year-old John Paul Stevens, about to begin his fourth decade on the Court. I like his judicial politics, but that is the only thing that can be said for what otherwise has to be recognized as an act of narcissistic vanity. Even if there is nothing we can do, practically speaking, to force justices to leave after an appropriate time of service, we can surely act to prevent such extended terms. Our motto when evaluating whoever is nominated to succeed Rehnquist (and other retiring justices) should be “Don’t Trust Anyone Under 65”!


Comments:

Two points.

The papists chose their new pederast-in-chief because he chose them and then faked a number of them out. Age had nothing to do with it.

The second is that the length of time the folks on Supreme Court are serving is, I think, a reaction to their concerns that another loon like Scalia or an idiot like Thomas will be appointed. On the fundamentalist side Rehnquist won't retire until he's certain that another racist, fundamentalist like himself will be confirmed and that isn't certain even with the fundamentalists in power as they are now.
 

Two points.

The papists chose their new pederast-in-chief because he chose them and then faked a number of them out. Age had nothing to do with it.

The second is that the length of time the folks on Supreme Court are serving is, I think, a reaction to their concerns that another loon like Scalia or an idiot like Thomas will be appointed. On the fundamentalist side Rehnquist won't retire until he's certain that another racist, fundamentalist like himself will be confirmed and that isn't certain even with the fundamentalists in power as they are now.
 

As Sandy knows, I'm very sympathetic to his concerns -- if somewhat less sanguine about his proposed solutions to the problem.

But be that as it may -- and whatever one's views in general on SCOTUS tenure, or age -- surely, Sandy, you must be exaggerating, and by a wide margin, when you write that JPS's "judicial politics" are "the only thing that can be said for what otherwise has to be recognized as an act of narcissistic vanity" in his remaining on the bench beyond his 85th birthday!

For one thing, Stevens is just about the last Justice anyone would accuse of narcissism or vanity. He's never sought or acheived a high profile, never written opinions with an eye to sound bites, never drawn attention to himself as a public figure. Indeed, if I recall correctly, he's the Justice whom the least number of Americans can name (I think the number was well under 5%).

More importantly, all the evidence is that he hasn't skipped a beat at age 85. The quality and rigor of his opinions (mostly self-penned, as legend has it) has not noticeably changed; he has become much more effective tactically; and his influence on the Court is at an apex. In the past two Terms or so (actually, extending back at least as far as Tahoe-Sierra), he has been remarkably successful at leading the Court (largely through the buliding of coalitions with SOC and AMK) to stem what he no doubt considers some of the most dangerous tendencies of the Rehnquist Court. (For starters, there's Grutter, Lawrence, Lane, Roper, Hibbs, Locke, Tahoe-Sierra, Brown (the IOLTA case), Dickerson, etc.)

By all accounts, JPS would relish spending even more time with his family in Florida. Isn't it fairly evident, then, that he has not yet stepped down for one simple reason: that he cares deeply about the Constitution and is fairly certain (with good reason) that many of the Court's doctrines will change considerably for the worse (by his lights and by ours, Sandy) if he is replaced? And, especially if there's been no falloff in the quality of his work, don't we think that judgment is admirable . . . and proper?
 

Back here in Massachusetts, a Probate Judge of years ago often stated from the bench that all a judge was was a lawyer who knew a Governor. This can be extended to the federal level, substituting President for Governor. Now as for the Pope, all he is is a Cardinal who knows...(dare we say it?).
 

I second ML, though might accept that on some ground such strategic non-retirements can be cricized.

Anyway, only better health really explains why more judges/justices go on for so long. Two, yes two, chief justices served from 1801-1863. Many justices of that era served long terms.

Maybe, at some pt a tipping point approaches. A 15-20yr limit, especially if there was some ability to move to a different level, might be a good idea. In these times, an older CJ pick also would be advisable.

But, who says those in power necessarily want equity in the nomination process? Perhaps, Stevens knows that all too well.
 

Marty, on your view JPS has refused to step down because he believes he's essential to protecting the constitution and, presumably, the Republic, but that belief isn't narcissistic vanity. Is that right?
 

No, Thomas; I did not write that JPS thinks he is "essential to protecting the constitution," let alone the Republic. What I wrote is that JPS presumably thinks that if he is replaced by a Bush appointee, the Constitution as he sees it will suffer. He is obviously correct about that judgment -- you wouldn't deny that a Bush replacement for Stevens would likely turn the Court significantly to the Right, right? -- and it does not remotely reflect a "narcissistic vanity."
 

Marty, stated narrowly enough, I suppose that what you say is true: if a justice aims to protect and preserve only the "constitution as he sees it", then surely he's essential to that enterprise, and believing that doesn't suggest a narcissistic vanity. If, however, the aim is to protect and preserve the constitution then surely a belief that any one man or woman is necessary or essential to that enterprise (which a refusal to retire does suggest) is either narcissistic vanity or we're in more trouble than I'd otherwise believe.
 

Thomas, this really isn't very complicated: Given the state of the major parties today, a Republican-nominated replacement for JPS would likely undermine much of what he has worked for 30 years to preserve; and a Democratic-nominated replacement likely would not. And that's a fine, principled and non-nacissistic reason for JPS to refrain from retirement. But nothing JPS (or any of the other Justices) has done suggests any "belief that any one man or woman is necessary or essential to th[e] enterprise."
 

Well, as I see it, that indicates that JPS sees his role as preserving his own vision, and not preserving the constitution. What is it that he's worked for 30 years to preserve--is it his vision, or the constitution? If it's his vision, then yes, he does have a non-narcissistic reason for sticking around, though there may be some problems with what it is that he thinks he's doing. But if he's aiming to preserve the constitution, then no, he doesn't have any non-narcissistic reasons for sticking around to this point.

My vision of what we should expect from justices is a bit different: a recognition that no one is indispensable, and that the constitution and the Republic will survive his passsing, and thus that, after an appropriate time of service--say, a quarter of a century, or until one is in his 80s--one should step aside and let someone else take a try. That's what our presidents did from the founding until FDR stayed on too long--and surely JPS is no more essential to to our common enterprise than that.

So, sure, pay a bit of attention to who it is that will replace you. In JPS's case, that suggests he should have resigned in 1999. At the age of 79. After nearly a quarter century of service. Surely that's not too much to expect.
 

I always hesitate to disagree with Marty Lederman, and I think that "narcissitic vanity" may have gone too far. That being said, I think that it is telling that the major defense for Stevens' staying on involves one's affirmative support of his constitutional views. Assume that Kerry had won the election. Would we not expect Stevens to step down and castigate him if he did not? It is just this kind of politicization of the resignation process that demonstrates the corruption promoted by life tenure.
Given the current political reality, I confess that I share Marty's hope that JPS remains alive and well until at least Inauguration Day 2009 (when I expect a Democrat to be taking the oath of office). There is no reason for JPS to be any more noble than any other justice in this regard. It is the life tenure system that has created an increasingly broken Supreme Court, not the individual decision of a justice whose opinions I tend to admire.
 

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