The most popular of President Biden’s recent proposals to reform the Supreme Court is to limit the justices to staggered terms of 18 years. This idea is also among the five proposed amendments from the National Constitution Center’s 2022 Constitution Drafting Project, which convened progressive, conservative and libertarian scholars to identify sources of agreement on constitutional reform.
But despite its popularity, it’s doubtful that staggered 18-year terms would accomplish what advocates expect. The reform would tie control of the Supreme Court more tightly to the outcome of recent presidential elections, but it would also diminish the role of the Senate in the confirmation of nominees. And it is hard to imagine the Senate passing an amendment that diminished its own power.
Advocates of the reform propose to cap the size of the Supreme Court at nine justices and give each justice an 18-year term, with a vacancy occurring every two years. The anticipated benefits are three-fold.
First, term limits would shrink the gap between present political realities and the bygone moment in political time when a justice was appointed. That gap is sometimes intolerably large. The court’s most senior justice, Clarence Thomas, was nominated by President George H.W. Bush in 1991. Eight presidential elections have elapsed in the meantime. With an 18-year term, no more than four presidential elections could separate a sitting justice from the political moment of his or her accession to the bench.
Second, vacancies every two years would ensure that winning a presidential election translates to two Supreme Court appointments. When combined with the overall 18-year limit, this should produce a tighter fit between electoral outcomes and the court’s jurisprudence over time.
Third, advocates argue that this predictability will lower the temperature of judicial confirmation battles, because all sides will know they get a fresh chance at two seats after the next election.
These all seem like sensible reasons to adopt term limits. But the consequences and potential drawbacks deserve careful consideration.
It is by no means clear that making Supreme Court vacancies more predictable would make appointments less divisive. Indeed, as Rick Larue has argued, knowing which two justices will be replaced by the next president would only raise the stakes of the election and shift the attendant hyper-partisanship and acrimonious political rhetoric from “one arena — the confirmation process — to another — the permanent campaign.” Predictability and perfect information have not, after all, made political decisions like redistricting and gerrymandering less controversial or partisan.
Then again, vacancies on the court are so divisive because the Supreme Court is so consequential. If we want to lower the temperature, the justices will have to lower the stakes by being more modest in their ambitions.
More importantly, maintaining the two-year timing and predictability of vacancies would require scaling back or eliminating the Senate confirmation power. In the context of divided government, a Senate majority can delay confirmation of nominees indefinitely to prevent an undesirable appointment, as Republicans did with Merrick Garland in 2016.
The proposed amendment that resulted from the Constitution Drafting Project dealt with this problem by providing that advice and consent would be presumed if the Senate failed to reject a nominee within three months of receiving the president’s nomination. In other words, inaction equals confirmation.
This is not a satisfying solution. If the Senate votes to reject the nominee before three months is up, the clock starts over with a new nomination. A Senate majority could still stretch out the process for nine or even 12 months. It would certainly force an up-or-down vote on nominees, but the opposition strategy would escalate from passive obstruction to outright rejection. That kind of honest and open political opposition might be healthy, but it would not lower the political temperature of the confirmation process.
The cleanest and simplest means of achieving the predictability of two-year staggered vacancies would be to eliminate Senate confirmation altogether. The basic gist and logic of the reform is that winning a presidential election should translate into a somewhat predictable and measurable impact on Supreme Court jurisprudence. The appointment of two justices would simply become part of the spoils of electoral victory.
So would eliminating Senate confirmation be such a bad thing?
The Framers’ logic for Senate confirmation was essentially to prevent incompetent or corrupt officeholders, to ensure the president was making a responsible choice. As applied to justices, the process has occasionally performed that gatekeeping function. President George W. Bush’s nomination of Harriet Miers and President Lyndon Johnson’s failed effort to elevate Abe Fortas to chief justice come to mind.
Then again, neither of those nominations was a complete disaster. Both nominees were guilty of mediocrity, not any real corruption or incompetence. And mediocrity has regularly found its way onto the bench, even with Senate confirmation.
Against the limited benefits that accrue from the gatekeeping function, consider the circus that the confirmation process has become. Since 1980, the median time from nomination to confirmation is 80 days. Three months or more of drama has become the norm. Of the 15 successful confirmations since 1980, only one — Amy Coney Barrett’s — has taken less than a month, and it was denounced as unprecedented at the time.
In fact, Barrett’s speedy confirmation is far closer to the historical norm. The median length of the confirmation process between 1900 and 1980 was 17 days. Of the 47 successful confirmations then, 36 required less than a month of deliberation, 19 took less than 10 days and three were confirmed within one day. The process was even shorter in the preceding century.
Part of the chaos surrounding Supreme Court confirmations stems from changes in how the Senate deliberates on them. The centerpiece of the process, public confirmation hearings, has become a full-scale vetting of nominees. This, too, is a historical anomaly.
The first public hearings for judicial nominees were not held until 1916, when the Senate broke precedent for Louis Brandeis’s nomination. The first nominee did not appear before Congress until 1925 with Harlan Fiske Stone. And public hearings with testimony from the nominee were not the norm until President Harry Truman’s nomination of Tom Clark in 1949. The public spectacle that has since ensued has arguably done nothing to improve the legitimacy or performance of the Supreme Court or the Senate.
Perhaps, then, weakening or dispensing with Senate confirmation is not such a bad idea. Either way, it is important for advocates of term limits to own up to it as a necessary condition for tying the court more tightly to electoral outcomes.
Matthew Brogdon is the Larry H. and Gail Miller Family Foundation Senior Director of the Center for Constitutional Studies and associate professor of political science at Utah Valley University.