Berks County Bar Association The Berks Barrister Winter 2019 - 16

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From My Perspective: 18 or Life to Go?
Continued from page 15

night comedians will have plenty of material about why keeping
Ruth Bader Ginsburg alive and kicking is so important to keeping
alive their dreams of a Court with a more liberal bent. If our
country enacted 18-year term limits for Supreme Court justices,
nominees named by President Trump - or his successor in 2021
- would serve until 2039 and the randomness of when their time
on the Court ends would be eliminated. No more overthinking
or cheering for justices to stay on the Court until the end of one
president's term.
Of course, one issue that naturally comes out of such a proposal
is what happens when a justice dies unexpectedly? Well, the
possible solution would be picking a justice to temporarily fill the
seat until the end of the deceased justice's term, which is similar to
the process used for filling vacancies on the Pennsylvania Courts
of Common Pleas.xx This could have the added benefit of giving
more elder justices the well-deserved recognition for a lifetime of
jurisprudence, in the vein of a Justice Benjamin Cardozo or the
oft-passed over Judge Learned Hand. In addition, this process
would prevent people from "gaming the system" which can happen
when a conservative or liberal justice nears the end of their tenure
and retires while the party they support controls the White House.
However, the creation of judicial term limits will come down
to whether Congress moves forward with the Constitutional
Amendment process. No attempt has been made to amend the
Constitution since May 5th, 1992.xxi Further, it's highly unlikely
the Senate or the President would be willing to sign on to such an
initiative and cede so much power.
This proposal is of course merely an idea for a less-politicized
Supreme Court to protect its legitimacy in our republic. There
is no denying that the scars that are still healing from the
nomination battles over Clarence Thomas, Merrick Garland, and
Brett Kavanaugh will be long visible in the way that controversial
decisions made by the court tend to be. However, as the esteemed
institution where John Marshall and John Jay laid the foundation
for judicial review and defined the contours of concepts such
as the separation of powers with coequal branches of government
and federalism, becomes even more critical to American political
battles over abortionxxii, gerrymanderingxxiii, and climate
changexxiv; who occupies those red leather chairs has an even
broader impact on our nation's body politic and the agenda of any
given presidential administration. Thus, protecting the integrity of
the Court from further politicization could become critical to the
survival of our democratic republic. These robed men and women
stand as the foundational pillars of our great democracy. Yet
partisan pickaxes wielded by pundits and politicians have caused
the cracks in that foundation to become more apparent. Which
raises the question: Without serious reforms, including 18-year
term limits, will those cracks become chasms and do we need to
worry about the future of our nation?

16 | Berks Barrister

Raymond Edward Baker, Esquire, is a Berks County
Assistant District Attorney. The opinions set forth in this
article do not reflect the position, policy or opinion of the
Berks County District Attorney's Office.
Foran, Clare, and Stephen Collinson. "Brett Kavanaugh Sworn in as Supreme Court
Justice." CNN, Cable News Network, 7 Oct. 2018, www.cnn.com/2018/10/06/
politics/kavanaugh-final-confirmation-vote/index.html.

ii
Robinson, James. "There's Precedent for Merrick Garland's Supreme Court Snub." The
Washington Post, WP Company, 7 Apr. 2017, www.washingtonpost.com/opinions/
theres-precedent-for-merrick-garlands-supreme-court-snub/2017/04/06/02544902197f-11e7-8598-9a99da559f9e_story.html?utm_term=.cba2f916a90b.

USCS Const. Art. III, § 1

iii

Id. There was once a requirement that a supermajority (which would defeat a
filibuster) of 60 votes be reached but this was dismantled for Federal Judges and the
Supreme Court by Majority Leaders Harry Reid (D) and Mitch McConnell (R),
respectively.
iv

v
One Justice chosen, Robert H. Harrison, was unanimously confirmed but failed to
take the bench due to health reasons, his replacement, James Iredell was approved
unanimously.

Moran, Sean. "Mike Lee: If We Return to Civility, We Return to 'Principles' of
Constitution." Breitbart, 4 Sept. 2018, www.breitbart.com/politics/2018/09/04/
mike-lee-if-return-civility-we-return-principles-constitution/.
vi

Hatch, Orrin G. "Orrin Hatch: I Am Re-Committing to Civility." Time, Time, 28
June 2017, time.com/4835019/orrin-hatch-civility-politics/.

vii

viii Supreme Court Nominations: Present-1789." U.S. Senate: Supreme Court
Nominations: Present-1789, 6 Oct. 2018, www.senate.gov/pagelayout/reference/
nominations/Nominations.htm.
ix

Id.

Author's Note: The Only presidents to serve under the Nation's Constitution
during the 18th Century were Presidents George Washington & John Adams. With
only Washington having had to Withdraw nominations or have them rejected.
(See: "Supreme Court Nominations: Present-1789." U.S. Senate: Supreme Court
Nominations: Present-1789, 6 Oct. 2018, www.senate.gov/pagelayout/reference/
nominations/Nominations.htm.)
x

Id.

Hertzberg, Hendrik. "Perry's Good Idea." The New Yorker, The New Yorker, 19 June
2017, www.newyorker.com/magazine/2012/01/30/perrys-good-idea. www.cbsnews.
com/news/commentary-is-it-time-for-term-limits-on-the-supreme-court/.

xii

xiii

Id.

Note: Rick Perry currently serves the Trump Administration as the Secretary of
Energy.
xiv

xv
Graham, Michael. "Commentary: Is It Time for Term Limits on the Supreme
Court?" CBS News, CBS Interactive, 6 Aug. 2018.

Yglesias, Matthew. "No Other Democracy Gives Life Tenure to Judges on Its Version
of the Supreme Court." Vox, Vox, 16 Feb. 2016, www.vox.com/2016/2/16/11024096/
life-tenure-judges.

xvi

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