Amid one of the most vitriolic Supreme Court confirmation battles in modern American history, Republican and Democratic lawmakers have managed to find common ground. No one ever wants to go through this type of process again.
But as sure as they are about their desires to desperately avoid the bitterness that’s accompanied Judge Brett Kavanaugh’s nomination, senators are also entirely unclear on how to exactly do it.
One approach that has sparked a bit of interest on the Hill, is the idea of applying term limits to Supreme Court justices, who are, under the constitution, given lifetime appointments to the bench.
“That has been discussed,” Sen. Chris Coons (D-DE) told The Daily Beast. “One of the real merits of that proposal, in the abstract, is that you could set it up such that every presidency had a certain number of predictable Supreme Court seats. So, look, there is some intellectual appeal to the idea.”
There’s just one problem, as Coons went on to note. There’s a close-to-zero probability that Supreme Court term limits could end up becoming law. Doing so would require the passage of a constitutional amendment, which can only be done through a two-thirds majority vote in both chambers of Congress or a constitutional convention called for by two-thirds of the states.
“I think it is extremely unlikely that that is a proposal that would be advanced because it is extremely difficult to get any constitutional amendment moving forward,” said Coons. “But I can understand why folks are discussing it and why it has some abstract appeal.”
The idea of term limits has been increasingly floated in the world of academia and think tanks as an antidote to the growing toxicity of Supreme Court confirmation fights. The basic theory is that if justices were only allowed to serve a fixed time on the court, there would be less partisan rancor about their appointments. Instead of justices serving 30-40 years, they would be forced to retire after perhaps 12 years. The stakes of any individual nominee would therefore be limited.
There would be added bonuses as well. The terms could be structured in a way to ensure that a Supreme Court opening would generally occur in each presidential term. Justices wouldn’t stay on the bench so late into their lives (when their health or mental capacities may be fading) and presidents wouldn’t be so hesitant to appoint more experienced jurists simply because they were relatively old, and thus with less years on the bench ahead.
“It has piqued my mind,” said Sen. Michael Bennet (D-CO). “We are now in a situation where, at least for the immediate future and maybe forever, we are going to put people on the Court by the barest partisan majority. We will have to have a president and the Senate from the same party [for a nominee to be confirmed]. That is an incredible distortion in our system and it hasn’t been the way it’s worked until now.”
Term limits, Bennet added, “could be an answer to it.”
The appeal of term limits has spanned across ideological spectrums too. The Kavanaugh debacle has prompted both liberal-minded columnists and conservative publications to opine on the need for them. And when it comes to elected officials, there is hardly a single member who doesn’t believe—at least publicly—that the Supreme Court confirmation process is in desperate need of fixing.
“There is no question that the American people believe that the United States Supreme Court has become politicized and is more of a political body than ever,” said Sen. John Kennedy (R-LA)
But there are downsides with Supreme Court term limits that have given others some pause. Sen. Chris Murphy (D-CT), for one, argued that instead of taking some of the politics out of confirmation battles, term limits could functionally have the opposite impact by forcing the Senate to have to engage in them more regularly.
“I don’t know if I want to go through this more often than I already do,” Murphy told The Daily Beast.
Mainly, however, the reason Senators aren’t rushing to consider term limits for Supreme Court Justices is because literally none of them think that the concept could ever be put into practice. At a time of intense partisan bickering, the notion that any proposal would get two-thirds support in both chambers seems downright fanciful.
And so, senators appear resigned to the likelihood that subsequent Supreme Court confirmation fights will be remain nasty political affairs—perhaps not as openly hostile as the Kavanaugh one, but certainly combative.
“You’ve got a bunch of people on there with lifetime appointments,” said Bennet. “But they’re getting on there through a process that, hopefully, will not be as perpetually terrible as it is right now.”
Asked why he felt the process would improve, Bennet replied: “Only because I don’t think we want to end up being Ancient Rome.”