After overcoming chills and a fever, Ruth Bader Ginsburg is back home from the hospital. Seeing as she’s beat cancer four times and can still bench 70 pounds even while pushing 90, her recovery comes as no surprise. But the ability of her health to throw the country into a frenzy point is a serious defect in our system of lifetime federal judicial appointments. What we need is a system of term limits for judges, like the ones that already exist for tax judges.
As a purely practical matter, term limits are overdue for District Courts, where the fates of most people coming to a federal court are decided by a single judge. Whereas Supreme Court Justices have both their staffs and their peers keeping their acuity in check, a district court judge can slowly descend to senility without much notice.
But as the Left has embraced judicial activism and the Right has campaigned in response, the outsized influence of the federal judiciary has clarified something rather macabre: The agendas of both political parties effectively hinge on life and death. A political theater oriented around a betting market of health now dominates our electoral politics as a result. That’s not good for the role of the judiciary, and that’s abysmal for civility in our public sphere.
Age limits are another apparently apolitical alternative, but that would incentivize presidents to tap appointees based on age rather than merit. Term limits do no such thing.
Top Democratic front-runners have called for packing the Supreme Court in an obvious power grab that would result in SCOTUS becoming more politicized, not less. But term limits provide an alternative with little liability for politicization. If SCOTUS terms were capped at 24 years, for example, Ginsburg would be replaced by a Trump appointee. But that would be evened out by Clarence Thomas, who, despite being nearly two decades her junior, has sat on the bench for two years longer than Ginsburg. In this hypothetical, he would have been replaced by an Obama appointee.
There is something clearly broken in a political culture where voters are told that abortion policy or gun rights are contingent on a single person’s health. Congress is supposed to write the rules protecting freedoms and life, with SCOTUS merely interpreting the law and the Constitution as written. Term limits wouldn’t fix decades of court politicization and incivility in campaigning, but it would ameliorate those problems somewhat. The Kavanaugh confirmation nearly tore the country apart, even though Kennedy had been very careful and methodical about his retirement. Just imagine how dark the war for Ginsburg’s seat will be if it results from her sudden passing.
