Fixing the Courts

Rick Perry introduced a disastrous congressional reform plan earlier this week that has been rightfully ripped to shreds. Perry's plan would rewrite the constitution to turn Congress into a part-time body, opening the path to far more corruption, increasing the influence of lobbyists and money.

We don't often praise the Texas governor here on Vox Pop, but he should be given credit where it is due, and somehow mixed in Perry's plan, which would be Jack Abramoff's dream government, was the most sensible policy proposal from a Republican candidate this year. Perry suggested a constitutional amendment that would end lifetime appointments for federal judges, including the nine justices on the Supreme Court. Here's how his plan puts it:

There are a number of proposals which might be considered—one would be a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two justices per term, and that no court could stretch its ideology over multiple generations.

The current system of lifetime appointments creates a number of perverse incentives. Presidents are inclined to appoint the youngest judge possible, not necessarily the most well qualified, in order to maximize their lasting influence on the nation's judicial record. And then those judges may stay on the bench at times when they might otherwise retire, waiting for a liberal or conservative president before vacating their seat.

Imagine this not-so-far flung hypothetical: After new president Mitt Romney is inaugurated in 2013, liberal justice Ruth Bader Ginsberg's health takes a turn for the worse. Over the course of the next two years, aging justices Kennedy and Scalia also leave the court, allowing Romney to appoint three Supreme Court justices in his first term. Presuming Romney follows the recent trend and nominates judges in their 50s, a new conservative majority—joining forces with Bush appointees Roberts and Alito—would be the final arbiter of the country's laws for the foreseeable future. Even if the American public decided to elect a string of Democratic presidents starting in 2016, the ideological balance of the court would be set for decades to come.

Term limits would benefit the lower federal courts as well. Obama's inability to fully stock the federal bench has been one of the greatest failures of his first term. Republican senators have been intransigent over the past three years, employing the filibuster to an unprecedented extent to block the president's appointees. But the fault also lies with the White House, which has been unusually slow to send judicial nominations to Congress and has not fully utilized the power of recess appointments. With Bill Clinton as the sole Democratic president over the previous three decades, the federal judiciary was already tilted toward conservative justices when Obama was elected, and he has done little to correct that course.

If Obama fails to win a second term, the next Republican president will be able to stock the federal courts with friendly justices, tilting the ideology of the entire federal judiciary toward conservative thought for at least a generation. A proposal such as Perry's would mitigate this circumstantial advantage, allowing the courts to better reflect shifting ideas among the country while maintaining their independence from the political whims of the day.