Term limits for judiciary intriguing idea

One idea that emerged late last year from one of the Republican presidential nominee candidates who have fallen by the wayside has some intriguing possibilities.

In a campaign stop in Bettendorf, Iowa, last November before his own campaign for president stopped altogether, Texas Gov. Rick Perry spoke about reforming the judicial and legislative branches of the federal government.

One of his proposals, captured in the CBS News video available online, was to cut the pay, staff and time spent in Washington, D.C., by federal lawmakers in half. If you look at the schedules of Congress, it would seem they've already cut severely into the time that the Legislature actually meets, at least in the House. According to the 2012 schedules, the U.S. Senate is scheduled to be in session 172 days this calendar year. The House, however, is scheduled to be in session only 109 days, which averages out to two days a week.

Perry's other proposal, based on ideas already presented by others over the past few years, would be to limit U.S. Supreme Court justices to single 18-year terms as members of the nation's highest court.

In an article for the Harvard Journal for Law and Public Policy in 2006 by Steven G. Calabresi and James Lindgren, both with the Northwestern University School of Law, the law professors noted that the tenure of justices on the Supreme Court has lengthened considerably. From 1789 until 1970, the average tenure on the high court was 14.9 years. Since 1970, however, the average tenure has extended to 26.1 years and there were no vacancies at all on the court from 1994 until mid-2005.

In their article, Calabresi and Lindgren called for federal lawmakers to pass a constitutional amendment that would do several things. First, it would fix the number of members of the Supreme Court at nine. The Constitution leaves it up to Congress to determine the number of justices, though President Franklin D. Roosevelt tried -- unsuccessfully -- to raise the number to as many as 15 in 1937 when the high court was slow to warm to his New Deal policies. By 1941, FDR had made seven Supreme Court appointments, which greased the political skids in that regard.

The Northwestern professors' plan would stagger the justices terms so that one was elected every other odd-numbered year, guaranteeing that any president who served a full term would appoint two justices and any president who served two full terms would appoint four members of the high court. Under their proposal, the changeover wouldn't be immediate. If the amendment were to pass, justices on the court at the time of the passage and nominees already made by the president before passage of the amendment would be exempt from the term limits.

With our longer life spans today compared to when the Constitution was written and with presidents who try to ensure their legacies beyond their own constitutionally-limited time in office by appointing like-minded young justices who can serve for decades, the term limits of justices would create some degree of drag on the ideological "packing" of the nation's final arbiter. If there's any doubt as whether that's what presidents are doing, looking at the current court's roster, three justices were 50 when they were appointed and one was 43. Only Ruth Bader Ginsburg had reached 60, her age when President Clinton appointed her in 1993. The average appointment age of the current nine justices -- a few months over 52 years. It's not unreasonable to expect that most of these justices will be still be in their robes in their late 70s and into their 80s.

It's difficult to believe that the Founding Fathers expected Supreme Court justices to serve 25, 30 maybe even 40 years on the bench. Eighteen years seems a much more reasonable length of service and an opportunity to prevent one point of view -- whether liberal or conservative -- from having too great an influence on how the Constitution is interpreted.

-- The Albany Herald Editorial Board