Newswise — Neal Allen, associate professor of political science at Wichita State University, offers the following commentary suggesting term limits for Supreme Court Justices in light of the conflict over Brett Kavanaugh's nomination for the Supreme Court:
The conflict over Brett Kavanaugh’s nomination for the Supreme Court demonstrates the need for eliminating life tenure for Supreme Court Justices. Lowering the stakes for judicial confirmation would be a crucial step toward deescalating our increasingly-tribal politics.
Trump advisor Kellyanne Conway said “I don’t think one man’s shoulders should bear decades of the Me Too movement.” While this is not a reason for confirming Kavanaugh, it is a reason for lowering the stakes of Supreme Court confirmation process.
A Supreme Court confirmation hearing, particularly when held in an election season, is a poor forum for a national conversation about an issue like sexual assault. President Trump and his supporters are incentivized to blame and defame Kavanaugh’s accusers. Those opposed to Kavanaugh as a potential Justice are incentivized to find and publicize potential victims, even if they do not want to go public with their experiences.
The Kavanaugh nomination is now a kind of national referendum on how to investigate and assign responsibility for long-past events. A confirmation of Kavanaugh will be interpreted, rightly or wrongly, as an endorsement of a burden of proof standard that gives preference to the accused.
As a democratic society, however, the United States has not reached any kind of consensus about how to handle allegations of sexual assault by powerful figures. The last two years have seen both the election of a President who was heard on tape bragging about sexually assaulting multiple women, and the firing of multiple media executives for long-term patterns of sexual assault and harassment.
The partisan imperatives for Trump and Republican Senators are to install Kavanaugh on the Court as quickly as possible, even if he has the potential to become a symbol of antiquated and dangerous norms of male sexual behavior. To wait even a few weeks for a proper investigation would risk pushing the confirmation vote after an election that could see control of the Senate shift to the Democrats.
Fixed terms for Supreme Court Justices, set in the range of 10-18 years, would retain judicial independence while reducing the potential positive or negative effect of a Justice on the lives of Americans. Fixed terms would also allow for placing all vacancies in even-numbered years, with several months available for a President to withdraw a troubled nomination and get someone else confirmed before Senatorial and Presidential elections.
Entirely too much is riding on the nomination of Brett Kavanaugh. Instead of removing partisanship and political considerations from the Supreme Court, life tenure has made the nomination of a new Justice the most partisan and conflictual decision made in our political system.
It is too much to ask of our current elected officials, particularly in the White House and Senate, to make a decision that will determine the constitutional rules we live under for as long as the 53-year old Brett Kavanaugh lives and desires to serve on the Supreme Court. It is time to reconsider how we choose Supreme Court Justices, and how long they serve.
Neal Allen is Chair of the Political Science Department at Wichita State University