The Great Change: Turning Cathy into a Lawyer

Professor Barnett posted on the Volokh Conspiracy a proposed law, the "Supreme Court Renewal Act of 2005," which would limit Supreme Court terms and change the schedule by which appointments are made. Read the proposal, but the major difference to the current system is that a justice should be appointed every Congressional term, whether or not there's a vacancy. This requirement would effectively cap terms at 18 years, because senior justices would be pushed out as new justices were appointed.

Professor Barnett opened the post up to comments, which is something the professors on the Volokh Conspiracy do but rarely. I decided to weigh in because I thought the proposal poor and ineffective in solving an actual problem:

"If the problem with the status quo is that judicial nominations are too political, I don't see how a process that makes nominations political by routinized design could be an improvement. Worse, this process would seem to inject politics directly into the very operation of the court.

The basic premise to this entire plan seems to be that justices should reflect the political will of the majority. Ignoring for the moment the need for justices to protect the needs of the minority, and presuming that political will is ever accurately reflected in the composition of Congress, the proposal completely de-emphasizes any qualities to the justice him or herself as a just and capable interpreter of law. The language discussing the recall to the bench of "Senior Justices" in reverse seniority is particularly telling in this regard. It seems to reflect the belief that the more recent the nomination the more accurately the justice would be a proxy for the will of the people, and that this political accountability would be desirable. Even assuming this belief to be sound, is that really what we want from our justices? What about experience? What about their capabilities as legal thinkers?

When we lament the current politicization of the nomination process, we are lamenting the loss of any reasonable basis to evaluate the qualifications of judicial nominees. We should reverse that trend, not codify it."