Richard is right; it was with barely-concealed glee that I prompted him to talk about abortion. I had hoped to spark some discussion on the issue, but-�perhaps to the frustration of anyone out there in cyberspace still reading this exchange-�once Richard revealed where he stood I found there was little difference between us. We both, I think, understand the abortion question as implicating issues of federalism, morality, and the beginnings of personhood; issues that, in our Constitutional scheme, lead us to the conclusion, expressed most forcefully by Justice Scalia's dissent in Planned Parenthood v. Casey, that the Supreme Court in particular and the federal courts in general should get out of the business of functioning as a National Abortion Control Board. The tragedy here is that for people who care about the rule of law this conclusion--that the Constitution has nothing to say about abortion--is an obvious one, but if Roberts dares to indicate it in his hearings, he's probably judicial toast.
So, time again to try something new. In one of our e-mails accompanying the postings of our blogs to each other Richard indicated that perhaps we could discuss proposals for term limits for federal judges, and maybe that's the next area we ought to explore, although I'm not sure of its immediate relevance to the Roberts nomination. Perhaps, though, the proponents of term limits believe that if Supreme Court justices had fixed terms (and perhaps if they were ineligible for additional terms), less would be at stake in Supreme Court nominations, they might become less of a political circus than they currently are, and we could return closer to the original conception of judges as apolitical neutral interpreters of the law (a conception Roberts, to his great credit, has stoutly maintained, and on which his nomination by the President is ostensibly based). My own feeling, though, is that term limits would not make our Justices less political, rather the reverse.
The problem term limits seeks to address is real enough. As proponents of term limits such as my colleagues Steven Calabresi and James Lindgren have observed, in the first twenty years after the ratification of the Constitution Supreme Court justices served for an average of 13 years, but more recently (due no doubt to improvements in life expectancy, and, perhaps the less onerous nature of the job) Justices are serving for twice that time, about 26 years. Rehnquist and Stevens have both been on the Court for 30 years, and the average retirement age for Justices is now 78.8 years, an age, presumably, at which one may well become a bit woolly-headed.
I suspect, however, that if we imposed term limits (say fifteen or twenty years), they would simply result in Justices who, nearing mandatory retirement and realizing that they had failed to make as significant an impact as they had hoped, would seek to go out with a big splash, and would end up paying less attention to the requirements of the Constitution and more to creating a legacy. With the additional number of Supreme Court appointments would come increased political focus on the Court, and the possibility of controversies over Justices becoming more frequent and more politicized.
I do think something needs to be done about the problem that too many members of the Court believe that they are policy-makers rather than judges, and that this drives the Senate to embroil nominations in partisan politics, as was done with Bork and Thomas, and as might still happen with Roberts. Rather than term limits as a solution, however, I'd be inclined to reduce the number of members on the Supreme Court (thereby reducing the number of battles over nomination and lessening the temptation to make appointments based on gender, religion, or ethnicity�-both of which might lead to a greater tendency to think of the court as an objective interpreter of law and not a super-legislature), or to repeal the Seventeenth Amendment (which might raise the level of discourse in the Senate as it became less overtly partisan). I realize that a smaller Supreme Court could lead to more intense politics at each instance of appointment (since more would be at stake) and I realize that returning the choice of Senators to state legislatures is not likely to win popular approval, but we bloggers can dream, can't we?