If President Barack Obama was nominating a justice who would serve a maximum of 10 years, would the nomination result in a bitter political feud? Would the Republicans threaten to block his nominee at any cost? Would politicians on both sides of the aisle be more willing to compromise?
Those questions are at the head of what seems like a radical proposal -- imposing term limits on the Supreme Court. Currently, justices serve for life. The longest-serving justice in history, William O. Douglas, sat on the bench for almost 37 years.
The late Antonin Scalia, whose death triggered the current fight over a replacement, served just short of three decades. Anthony Kennedy isn't far behind, with 28 years on the bench. Justices Clarence Thomas and Ruth Bader Ginsberg have served 24 and 22 years, respectively.
Three or four decades is a long time. Generations come and go. Technologies change. The views of the American electorate shift. Long congressional and Senate careers end with retirement or defeat. Yet the Supreme Court soldiers on like some sort of political sphinx, impervious to the forces that reshape society, culture and government.
That, of course, is by design -- the Founding Fathers wanted justices to be free not only of political ties, but also the short-term changes that pull politicians in different directions. Life appointments allow justices to think long-term, with the hope that they rule based on the U.S. Constitution.
While their intentions were good, it hasn't quite worked out the way they intended. That's why term limits for Supreme Court justices is an idea worth exploring -- the only option that provides a solution to the problems that crop up every time a president needs to nominate a new justice.
Columbia Law School professor Jamal Greene wrote in The New York Times:
No one should need convincing that our Supreme Court appointments process is broken. Justices strategically time retirements so that they may choose the ideology of their replacements. Partisans on both sides dissemble without shame. Character assassination of distinguished public servants is routine. Confirmation hearings are a kabuki dance in which the nominee’s goal is to disclaim creativity or intellectual curiosity.
The vast majority of other nations have term limits on their high courts, according to the CIA's World Fact Book.
Imposing term limits would automatically take some of the pressure off both sides of the political divide, because they'd no longer be playing for all the cards. They might not like an ideologically opposed justice stepping up for a 10- or 18-year term, but at least those terms are finite. Life appointments create a sense of finality and uncertainty, since no one can predict when a justice's term will end.
Erwin Chemerinsky, a noted legal scholar who teaches at the University of California's Irvine School of Law, pointed out in the Washington Post that a life term meant something much different at the time of the Founding Fathers. With much shorter life expectancies at the time, he said, "Thirty-year tenures are not what the framers had in mind."
Chemerinsky favors mid-length appointments.
"Eighteen years is long enough to allow a justice to master the job," he wrote in 2013, "but not so long as to risk creating a court that reflects political choices from decades earlier."
Term limits aren't as outlandish an idea as they may seem. A July 2015 poll by Reuters-Ipsos found that two-thirds of Americans -- conservative, liberal and middle-of-the-road -- support 10-year terms for justices. Interestingly, almost half of those polled also said they'd prefer directly electing justices, rather than the current process in which justices must be approved by the Senate.
Imposing term limits on the court would require a constitutional amendment, but that shouldn't be an obstacle, particularly with polls consistently showing Americans are against lifetime terms. Just because something is tradition, or dates back to the founding of the country, doesn't mean it's sacrosanct. In this case, bringing the Supreme Court more in line with the times is something that's long past due.