Presidential Commission on the Supreme Court of the United States
guarantee regular appointments. It would still encourage parties to nominate ever younger candidates in order to squeeze the maximum number of years out of each appointment. Thus, if the goal is to regularize appointments and to ensure that political parties that win elections get a predictable number of opportunities to appoint new Justices, term limits offer a better option.
II. Objections to Term Limits
The Commission also heard and considered arguments against term limits. In the main, the opponents argue that the current system of appointing and protecting the independence and neutrality of federal judges and Justices, through life tenure, has worked well for over 230 years. The independent federal judiciary, protected by lifetime tenure, is one of the most signal accomplishments of our constitutional system. Opponents of term limits for Supreme Court Justices argue that proponents therefore have a heavy burden of persuasion when they seek to remove what opponents regard as an important pillar of judicial independence. Opponents point to the Constitution’s provision that judges serve for “good Behaviour,” which they regard as providing for life tenure, as one of only two express protections of judicial independence.[26] Opponents contend that far from meeting the burden of persuasion, term limits are likely to worsen existing problems, such as the partisanship of the confirmation process, while at the same time introducing new problems. In addition, opponents argue that term limits would be extraordinarily difficult to implement.
Most fundamentally, term limit opponents deny that it would be good for each President to receive two appointments to the Court. They are concerned that the proposal would further politicize appointments and heighten the belief that Justices are allies of the President and the President’s party—developments they think could do great damage to the Court. Because they believe that term limits could be perceived as founded on the view that judges are partisan, political actors, opponents of term limits believe that inestimable damage could be done to the federal courts by adoption of this reform proposal.
Opponents also raise a number of more specific objections to term limit proposals and their justifications.
First, opponents see term limits as setting up a dynamic in which the presidential election focuses not just on Court appointments in general but on the two guaranteed vacancies and appointments specifically. If two seats on the Supreme Court are guaranteed to open every
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