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A belated, skeptical reply: A cure worse than the disease?

August 18, 2005 4:28 PM

It�s taken me too long to reply to Richard; it wasn�t for lack of brilliance in his last posting, but rather because I got distracted by real world opportunities for vacation and consulting; but I�m back in the blogosphere for a while. I didn�t mean to shy away from what Richard called �grubby� topics. I think it is part of our job to lament the sad state of the debate over John Roberts, and I�m sure Richard was as incensed as I was that no sooner had the ABA given Roberts its unanimous �well-qualified� rating (which Sandra Day O�Connor did not quite achieve � some ABA committee folks ranked her �qualified,� some �well-qualified�) that some of the same folks (Senator Patrick Leahy was the chief offender) who had recently been praising O�Connor, and who had called the ABA�s �well-qualified� ranking the �gold standard� for confirmation candidates, were combing Roberts�s record as a young government lawyer for any ammunition to support their ludicrous charge that he was a right-wing radical.

Unlike Richard, I�m not as worried about the supposed perils of a superannuated bench (to paraphrase Hamilton in the Federalist Papers); I suspect the problem is who gets appointed rather than if they die with their boots on. I�d like to keep Rehnquist around as long as we can; I think he�s still sharp and doing the right thing. Harry Blackmun, when he decided Roe v. Wade, and appeared to classify it as a �medical� rather than a legal problem, in one of the most bizarre opinions ever rendered, wasn�t yet doddering; and Souter, O�Connor, and Kennedy, when they issued their notorious plurality opinion with the daffy mystery passage weren�t quite over the hill yet either. Indeed, Richard appears to assume that justices need to stay attuned to the times (his example of John Paul Stevens), but I�ve always thought that the essence of constitutional principles, and, I hope, constitutional law, is that it�s timeless. Hamilton thought that few lawyers would combine the requisite intelligence, altruism, and character objectively to determine constitutional questions, and where we had them we shouldn�t be willing to jettison them early. It�s true that life expectancy is longer now, and perhaps the current crop of justices, compared to earlier benches is not as razor sharp as one might like, but absent more proof that older justices tend more and more to do the wrong thing, I�m reluctant to monkey with the current constitutional structure for judicial term limits (although the flag desecration amendment still seems like a fine idea to me).

One other interesting risk of judicial term limits, pointed out to me by my son-in-law, Stephen Andrews, a history professor at the University of Indiana (whom I was visiting when I should have been replying to Richard), is that if a person is young enough � say 50, like Roberts � when appointed to the Court, if term limits were 15 or even 20 years, there would still be enough time left for former Supreme Court Justices to run for public office. Reagan was older than 65 when he was elected President, and it is not inconceivable that an appointee to the Court might regard it as a steppingstone to higher political office, so that politics might flavor his or her decisions on the bench, rather than strict adherence to the Constitution and laws. And that, after all, is the problem we�re addressing--isn�t it? How do we keep our judges from deciding on the basis of politics rather than law? I�m not sure term limits are the solution, nor am I sure that the cure wouldn�t be worse than the disease.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.