Elena Kagan Hearings and Politics of Life Tenure on Supreme Court

WASHINGTON, July 1, 2010— -- If Elena Kagan is confirmed to the Supreme Court and she serves until she's 90 -- the age of her predecessor Justice John Paul Stevens -- she would become the longest serving justice in U.S. history.

It's a weighty and not unreasonable prospect that has hovered over her Senate confirmation hearings on Capitol Hill this week, fueling tough questioning of the 50 year-old nominee who faces appointment for life.

"Once you're there, you're there, and we have very little ability to change it," remarked Republican Sen. Tom Coburn on Tuesday.

But many Americans and some legal scholars are asking whether Constitutional provisions allowing Supreme Court justices to serve as long as they'd like, or as long as they live, might do more harm to American jurisprudence than good.

In a new CSPAN poll, 53 percent of Americans say they "disagree" with the policy that says justices should remain on the bench as long as they display "good behavior."

And some legal scholars say the lengthy tenures – which mean less regular Court vacancies – have deeply politicized the court and sparked the hot partisan debates over nominees' confirmations witnessed over the past few years.

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"There is so much at stake that confirmation battles have become much more intense," write Northwestern University law school professors Steven Calabresi and James Lindgren, who argue for Supreme Court term limits in a recent Harvard Law Review article.

"Although life tenure for Supreme Court justices may have made sense in the eighteenth-century world of the Framers, it is particularly inappropriate now," they say, "given the enormous power that Supreme Court justices have come to wield."

Calabresi and Lindgren argue that longer terms and fewer vacancies make presidents seeking to leave a legacy inclined to appoint younger nominees to the bench, and encourage retiring justices to time their departures to coincide with a political tide.

Other critics of the current system say the creeping average age of Supreme Court justices, which is currently 69, only deepens the divide between the court and public opinion on hot button issues.

"The principal link between public opinion and the court is through replacement, and slow turnover is a threat to that link," said Emory University political science professor Micheal Giles.