Elena Kagan to the Supreme Court

As predicted here, President Obama will nominate Elena Kagan for the Supreme Court. What? Virtually everyone predicted Kagan? Shoot.

My Kagan pick was based on one thing: age. The other candidates are too old to hope for a long legacy. Kagan’s two big competitors, Judge Merrick Garland and Judge Diane Wood, are 57 and 60 years-old. The Republicans started this, picking justices younger justices. President Obama is carrying on this dubious legacy.

I read an editorial in the Washington Post a week or so ago suggesting term limits because of this problem of presidents discriminating (in a loose sense of the word) against older Supreme Court candidates because well-qualified candidates are disadvantaged at the height of their legal careers.elena-kagan

It is always heresy to suggest the our capital “F” Founding Fathers made a decision that did not stand the test of time, but isn’t this a real problem? Life tenure, this Post editorial argues, is a relic of a time when life was a lot shorter.

I’m actually not sure that is true. I would think this would make the case even stronger for nominating young justices that are going to last. If people are dying younger, get in younger people, right? I think it is probably more political than it was in the past. I usually dislike for the nostalgic past that probably never was. But I do think this is the problem and presidents of both parties are falling prey to it.

Again, holding out Maryland up as the gold standard for the second time in the last week, I don’t think recent Maryland governors have fallen prey to this tendency to grab someone young and Maryland’s relatively liberal governors (and Governor Ehrlich) seemed to have looked for the right people without allowing rampant idelogy to control their choice.

(Or, maybe the Baltimore Sun has been fifth season of The Wire asleep and there is more politics involved than I naively think but no one is paying attention. But I don’t think so.)

The argument made in this Post editorial is pretty good, the gist of which is this:

First, for the reasons already described, well-qualified candidates are disadvantaged at the height of their careers. Second, the combination of lifetime tenure and growing life expectancy leads to a geriatric court, at times problematically so. According to figures compiled by Northwestern University law professors Steven Calabresi and James Lindgren, the average age of Supreme Court nominees has remained steady at about 53 over time while their average tenure has grown by more than a decade in recent history. From 1789 until 1970, judges served an average of 15 years. From 1970 until early 2005, the average tenure expanded to almost 26 years. The four justices leaving since then (including Stevens) had served an average of 28 years.

Third, and related, the increasing tenure means a court that can go long periods with almost no turnover. Until the departure of Chief Justice William Rehnquist in 2005, the court went through an 11-year stretch without any change in its membership. This is unhealthy for any democratic institution. Fourth, the absence of term limits creates a kind of presidential lottery in which some presidents (Jimmy Carter) get to pick no Supreme Court justices while others have multiple appointments (Richard Nixon had four). Fifth, fixed limits prevent justices from gaming their departures to give the pick to a president of their political persuasion.

Citing foreign law is a controversial practice these days, but no other major country gives life tenure to its equivalent of Supreme Court justices. Neither do any of the 50 states. A term limit of 18 years, phased in over time, would mean that Supreme Court vacancies would open up once every two years.

I think these are good arguments. Good enough to change the Constitution? I really don’t know.
Post script: I wrote this blog post yesterday and looked at the traffic this morning. Most of the traffic involved Elena Kagan’s height. Her height? Incredible. How tall is Kagan? 5’3. Huge issue for our country: who is this next potential justice? I cannot imagine why anyone cares what her height is. That said, I think she might be 5”4.

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