Bench Memos

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Souter Vacancy I: Toward Armistice in the Judicial Wars?


Major newspapers on this Sunday are full of all sorts of speculation about, and advice for, President Obama’s nomination of a new Supreme Court justice to succeed David Souter.  In the Washington Post, in addition to the “Topic A” symposium to which our Ed Whelan made a contribution, there’s a piece by the Brookings Institution’s Benjamin Wittes noting that some of the best potential nominees to the Court are out of the running for the worst reason: they’re too old, at least by contemporary standards.  It used to be normal for presidents to nominate justices who were already in their 60s, but no more; as Wittes points out, “the ever-escalating political war over the courts has put a premium on youth–on justices who can hang around for decades as members of rival ideological camps.” 

But why is there such a “political war over the courts”?  Because the Supreme Court has politicized itself more than at any time in our history, intruding on more and more areas of policymaking that are not properly judicial business and conjuring doctrines of “constitutional law” that have nothing to do with the Constitution.  As for the “rival ideological camps,” it would be more accurate to say that as a general matter (there are exceptions), political conservatives want non-ideological judges, not “conservative” ones, while political liberals want ideologically liberal judges.  So the “political war” Wittes mentions is really a war over whether the Supreme Court should be political, not a war over whose politics will be in charge of the judiciary.  It’s true that both sides in our politics want young justices who will stay a long time, but liberals want to secure the judiciary’s long-term politicization, while conservatives want to undo that and to restore, for the long term, the traditional understanding of the judicial function.  (Again, this is a generalization with some exceptions on both sides of the political aisle.)

This “war” is likely to go on a long time, with every Supreme Court nomination a high-stakes battle of enormous consequence.  One way to bring the stakes down and to begin working toward a ceasefire would be to routinize the conflict.  As I remarked here a couple of months ago, I’m drawn toward the idea of eliminating the federal judiciary’s tenure “during good Behaviour” and instituting 18-year terms for Supreme Court justices, with one seat coming vacant every two years.  Suddenly experience might be valued over youth; the automatic opening of seats according to the calendar would give everyone reason to hope for some influence over judicial behavior in the near term; the repeated revisiting of the constitutional issues might improve the understanding of them, among political leaders as well as the public; we might begin to work our way toward a restoration of a more limited use of judicial power; and if that failed to occur, and we were stuck with a judiciary that is just another political institution, we could at least affect the composition of its personnel on a regular basis, just as we can with our other institutions.


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