Old Wine In New Robes

Concurring Opinions writes for a lot of us when it says that too much time and effort goes into watching and analyzing Supreme Court nomination hearings, such as the recently concluded Sotomayor hearings: Randy Barnett Revisits Rosen

But I do think that the legal blogosphere comes out of these hearings looking pretty silly and oddly obsessed with an institution that decides almost no cases that matter to the political, economic or cultural life of the country. Even were the Supreme Court to be as practically significant as, say, the House’s Ways and Means committee (a proposition which is arguable), the devotion of so many resources to the intense study of a single confirmation hearing would still be odd. The goal of such hearings is obviously to allow Senators to talk their political bases about why they ought to be reelected while pretending to talk to the nominee about why she ought to be confirmed. That’s why, for example, we’ve got witnesses on constitutional property rights, an area of law which has - to my mind - disproportionate political salience when you consider the heavy governmental intrusions contemplated by the common law tort and contract regime, never mentioned in the hearings

I get that it’s a slow news week, or perhaps even month, but the attention that law professors, lawyers and journalists have paid to this hearing is unwarranted, especially when other far more interesting problems of legal reform and regulation are pressing. Worse, it encourages the view that the Justices are our platonic guardians, who must be blessed before they ascend into the heavens.

Well, for one thing there is a lot of money and political hay to be made when a Supreme Court nomination comes up, especially when progressives have a chance to beat up a conservative nominee. Chairmen bang their gavels, Senators bang their lecterns, and civil rights groups bang their contributer lists - all raising hell about Life in Robert Bork's America (where blacks must have "back of the bus" abortions).

Nominations are also one of the few areas in government where the checks and balances between all three branches of government play out in public at once. The Court is empowered (by itself, but we won't get into that) to review the activities of the Executive and Legislative branches, but the Court's membership is dependent on being selected by the Executive and then approved by the Senate. The Senate has an opportunity, not just to determine the membership of the Court, but also to check the president's power to make nominations. And, I think, Senators (who often see legislation they labor over for years get struck down by the Court) see nomination hearings as their one opportunity to speak directly to the Court and make its members squirm a little. It shouldn't be a surprise when political emotions quickly head toward 11.

The real problem with these hearings is the air of bogusness that hovers over the proceedings. Nominees assiduously dance around questions using the now-tired formulations "I can only follow the law," "I can only decide the cases in front of me," "I cannot answer hypotheticals." My favorite is "I have to follow precedent," which should be the bumpersticker slogan for policy-making Living Constitution proponents. Should the government take private property and give it to other private interests? "Precedent," or better yet "Super Precedent," says YES! Yaaayyy! But we never hear about this until it's too late.

These evasions may look good politically, but to the average person, they look evasive and Delphic, speaking in tongues where clarity is called for. Lawyers and activists might be satisfied, but the public is left with the impression that our Supreme Court justices are robotic dullards sticking to a script that they don't really believe in.

The root of the problem is that these are lifetime appointments, and Supreme Court justices tend to be very long-lived. As Rod Blagojovich would say, a seat on the Court is a "f***in' valuable thing." The air of drama would be lowered considerably if there were term limits on the justices' time on the Big Bench. The usual objections raised against legislative term limits - they would need time to build "experience" and seniority - simply don't apply to the justices. A justice can start having an effect on the Court immediately. There's no real seniority system on the Court; all they have is their votes. Justice Kennedy became "Mr. 5-4" within a few years of joining the Court, for example. The fact that Renquist and Scalia had been there longer had no effect on that. As for "experience," the justices have that from day one.

(Just as an aside, I thought Sotomayor demonstrated once and for all that she was a fairly mediocre pick in terms of intellect. However, her work experience - while often low-profile - was impressive. She has had a lot of exposure to a lot of areas of law in her work life, but I have had to piece this together from media reports. In an ideal world, her proponents would have downplayed the "first Hispanic woman" BS and touted her solid non-judicial credentials.)

My choice would be a term limit of 20 years. This is more than enough time to make a difference. Scalia would have been termed out in 2006. Thomas would be termed out in 2011. Stevens would have been gone in 1995(!). Back in the Olden Days, which ended sometime during the Eisenhower administration, Supreme Court justices were more subject to the robust operation of God's term limits. Harry Truman made two (or was it three?) nominations in one memorable summer due to death and disease among the justices.

A 20-year term linit would bring a sense of balance back to the Court, as it would be regularly infused with new blood. It would also remove some, but not all, of the hysterics that greet nominations. Finally, it would reduce the value attached to each seat, as we would be much more likely to know when seats would be open, and plan accordingly. The Constitution is supposed to operate with a minimum of fuss and disorder, but the placement of justices on the Supreme Court has become too fraught, such that the Court itself is diminished. Term limits would be a step towards reducing this trend.