Yesterday Bill Clinton gave some advice to President Obama on his next pick for the Supreme Court:
S"But it's not predictable. I'd like to see him put someone in there, late 40s, early 50s, on the court and someone with a lot of energy for the job." Clinton said his wife would be "great" at the court but said she'd advise Obama "to appoint someone 10, 15 years younger."
Going with younger picks is a very interesting dynamic. Given the more contentious fights we see for confirmation we have seen recently, I also would have to say it’s something we will see much more. A lot of people thought John Roberts was awfully young, as well as Sam Alito. Could you imagine if Bush would have picked someone in their 60’s or 70’s? Those people would be retiring in the next decade or two and we would be back to another confirmation battle.
Here’s some interesting facts to put this into perspective.
- Up until the retirement of Stevens the average age of the justices was 69. When Rehnquist was around it was 71. Now that average will probably drop a few more years.
- The longest period of time with no changes on the court was from August 3, 1994 to September 3, 2005.
Another thing to take into consideration is that people live longer and retire later in life now. Appointing a 43 year old justice 100 years ago isn’t the same as appointing a 43 year old justice today. The one today would server an average of 10 additional years.
There’s a dark side to this also. We will be left with much more longer tenures and less chance to reshape the court, to the point that society’s changes will out pace those of the court. But given how much time, money and energy is spent to get someone confirmed to the high court, having a more fluid high court has become a causality of increased partisanship.
So how could we fix this? How about an amendment to the Constitution to enact terms on the justices at our highest court. Maybe something like 10 year terms, starting at time of appointment. After that 10 years is up that justice has to go back for reconfirmation. This could be a great way to keep the court fluid, the justices in check and make confirmations common enough that the political fights won’t be as severe. America has changed over the years, as has her people, so it’s time for the founding principals, which served us well for years, to be “tweaked” to accommodate our changes.