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Staying Too Late

August 12, 2005 10:33 AM

Steve has decided that he will put the abortion issue on the backburner for the moment in the hopes that it will not become a litmus test in the upcoming Roberts confirmation hearings. I of course agree with that, but note that the recent advertisements of NARAL have been so explosively inaccurate on the issue of the Roberts record that they have caused dismay on the part of liberals who just wish that these ads would go away so that they do not have their reputation for fair play tarnished by a group of extremists in their midst. Let us hope that saner heads prevail, and the ad campaigns will die a merciful death. If they do not, then the confirmation proceedings in the Senate will only become more difficult to conduct.

Yet Steve apparently does not want to talk about these grubby issues, but instead has pushed the matter over to the question of term limits for the Supreme Court. Here I think that we do have a problem, which is to my mind highlighted by the difference in responses between Justice O'Connor, who had the good grace to step down, and Chief Justice Rehnquist who should have stepped down given his health condition and his age. I stress this last point because I think that there are two different ways to attack a defect that longevity has highlighted in our Constitutional structure. The provision that the all judges serve on good behavior has created a situation in which people with power are unwilling to let it go, and they serve for periods of time that are all too long for the health of the nation at large.

One way to attack that problem is with term limits. Lindgren and Calabresi have one approach on that issue, and Paul Carrington and Roger Cramton have a similar program that hopes to have an orderly turnover of justices on 18 year terms. I will support any proposal that cuts down on the overlong stays of judges of all persuasions on the court, but I care most, as does everyone else, about the Supreme Court, where huge power is concentrated in to the hands of a very few.

My own particular hobby horse is not just term limits, but age. I have said as often as I can that I think that the Age Discrimination in Employment Act is a huge social mistake. The point here is not that every employee goes dotty at 65. It is rather that the level of variance in abilities increases with age, so that turnover and reentry into the market becomes an important way to keep firms strong and individuals active. Sinecures only make for trouble.

The Act itself only passed because of an exemption that allow firms to demand the resignations of high-level employees at age 65, and that invitation is taken up for jobs far less arduous than the intellectual challenges raised by service on the Supreme Court. As a generous soul by nature, I think that sound national policy should give a little, but make it clear that after age 70 all Supreme Court justices have to retire, so that we as a nation are not ruled in part by a judicial gerontocracy. Justices who are still able to can do something else; the others can retire in grace and good fortune.

There is no doubt that Steve is correct that this proposal comes with costs. There are more confirmation hearings, alas, and some justices on their way out are too eager to take dramatic action to make that one last statement. Others I hope will have a better sense of their institutional role. But the alternative is not pain free either. Old justices have to fight against at least two real forces that bring down the level of their performance.

First, they lose touch with the hopes and aspirations of today, because they don�t have a sense of the shifts in popular sentiment. I believe that Justice Stevens, age 85, misread the backlash on Kelo because he was raised in the Progressive Age when urban renewal was thought to be a sign of hope, not of senseless destruction.

Second, there are concerns with ill health and diminished intellectual capacity. Better that people leave too early than they stay too late. The usual rhetoric on age treats this as a stereotype. I treat it as an accurate generalization to which there are some notable exceptions.

The United States should run its court system just as firms have to run their own businesses. The mandatory retirement policies in the private sector are a good barometer of what makes sense for judicial appointments as well. It will take a Constitutional amendment to do this. It may just be worth the hassle.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.