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.

Take the Quiz: How Well Do You Know the Supreme Court Justices?

"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.

Would Term Limits for Justices Improve Supreme Court?

But many legal experts insist proposals to impose term limits on Supreme Court justices are misguided and highly unlikely to receive Congressional consideration.

"For the most part the problem is an exaggerated one," said University of Georgia political science professor Richard Vining. "The situation is not severe enough to merit changing the Constitution."

Vining points out that there have been few cases of justices serving until they're mentally unfit and even the court's relatively sluggish responsiveness to public opinion isn't entirely a bad thing.

"Lifetime appointments contribute to the stability of the law," he said. "If you establish term limits then you get a lot of turnover and…it may be more democratic. But it will make it harder to predict outcomes in a legal setting, and knowing outcomes under the law and legal precedent is important."

Others have suggested more frequent Supreme Court nominations could make the court less independent and free from changing political winds.

Meanwhile, the average tenure of Supreme Court justices continues to grow, from around 15 years before 1970 to more than 25 years in the past four decades, according to Calabresi and Lindgren.

Retiring Justice John Paul Stevens sat on the bench for nearly 35 years – the third longest serving justice in history. "If I have overstayed my welcome, it is because this is such a unique and wonderful job," he said from the bench on his last day.

"It's an intoxicating job and a hard one to give up," said University of Kansas law professor Stephen McAllister of justices who choose to serve well into old age. "And by and large I think justices make good decisions health-wise about when to leave."

"But I don't think there's anything inherently magic about life tenure... and states have term limits for justices and their courts work just fine," he said.

No state appoints Supreme Court judges for life, and most force judges to retire sometime in their 70s, according to the National Center for State Courts. Similarly, no major country aside from the U.S. appoints judges to its highest constitutional court without a mandatory retirement age.