Following Debacle Of Kavanaugh Nomination, Should We End Lifetime Appointments To The Supreme Court? [Opinion]

The Constitution doesn't actually put into place a lifetime appointment for justices of the Supreme Court. Should the other branches limit the tenure of judges and justices?

A protester holds up a "Kava-Nope" sign in front of the Supreme Court building.
Win McNamee / Getty Images

The Constitution doesn't actually put into place a lifetime appointment for justices of the Supreme Court. Should the other branches limit the tenure of judges and justices?

The fight over Brett Kavanaugh’s nomination to the Supreme Court has sparked a furious outcry over the possibility that an individual who allegedly performed acts of sexual assault against at least three individuals (per previous reporting from the Inquisitr) may gain a lifetime position on the Supreme Court. Americans should begin to ask themselves: should a lifetime appointment like this be curtailed?

It’s a question well-worth examining, but first let’s consider the framework of how our government is currently set up. Two of the three co-equal branches of the federal government require regular consent of constituents to periodically agree whether or not to allow representatives within them to remain in office.

Lawmakers in Congress, who represent the legislative branch, are required to run for re-election every two years in the House of Representatives, and every six years in the Senate, if they want to remain in their jobs. The president, which represents the executive branch, must run for re-election four years after their first term begins in order to remain in office for a second term, after which they cannot run again.

The third branch of government, the judiciary, is not subjected to these same rules. The members of the Supreme Court, for example, once appointed may remain in their positions of power for their entire lifetimes, though the Constitution does not specifically state this (it merely says, according to Cornell Law School, that the justices “shall hold their offices during good behaviour”).

There may have been a time when this sort of setup was acceptable, but nowadays justices of the Court can remain in their positions for decades at a time, with little to no recourse for their removal by the people directly, and a limited chance of impeachment by Congress if the justices act out in inappropriate ways. That means, if more allegations against Kavanaugh come forward (or if any allegations of improprieties for other Supreme Court justices come about, for that matter), there’s very little legally that can actually be done to remedy those matters.

Kavanaugh, who put his partisanship on full display before the Senate Judiciary Committee following Dr. Christine Blasey Ford’s testimony, wouldn’t even be required to recuse himself in cases that come forward where his biases would be well-known, according to reporting from Mother Jones. He could sit in on and hear those cases, and even play a part in deciding them — even ones that involve plaintiffs or defendants that are part of the alleged “political hit” against him, as he said during his testimony.

Changes to recusal rules should be considered for the future of the High Court. But we should also bring about consideration for changes to how long a justice can sit on the bench.

There will be plenty of opposition to this idea, and one of the main obstacles will be that a justice who has done nothing wrong shouldn’t be removed from their position if their time on the Court expires. But within that debate, what is lost is this simple perspective: the justices on the Supreme Court, and the judges on the appellate courts below it, are not saints, are not imperfect beings. They, too, can make mistakes, and bringing new minds and perspectives into the Court every few years or so could remedy that problem.

Elimination of lifetime appointments for judges and justices would, of course, likely require a Constitutional amendment — or it may not. The lack of a direct statement within the Constitution may well render it possible for the legislative and executive branches to pass a law binding justices to adhere to such limits. But a Constitutional amendment would be the best recourse for doing so, cementing for certain that judges and justices couldn’t serve forever in the positions of power.

Especially for individuals like Kavanaugh, whose entire ascension to the Supreme Court was basked in controversy (even before the allegations of sexual assault came forward), an end to lifetime appointments may help alleviate the controversy of future appointments. Opponents to his nomination (or to any other future jurists’ placements) could at least tell themselves that their position wouldn’t be permanent.