Litigation

Life Tenure for Justices Questioned

By Peter Hardin

If confirmed, 50-year-old  Elena Kagan could become the longest-serving Supreme Court justice ever if she retired at the age of Justice John Paul Stevens, who is 90.

And while life tenure for justices is seen by many as ensuring judicial independence, some critics are asking whether life tenure makes for the best jurisprudence. The debate gets a close look in an ABC News article, headlined “Elena Kagan Hearings and Politics of Life Tenure on Supreme Court.”

Some key points from the article:

• Fifty-three percent of the people surveyed in a recent CNN poll said they “disagree” that Supreme Court justices should serve on the bench as long as they show “good behavior.”
• Northwestern University law school professors Steven Calabresi and James Lindgren, advocating Supreme Court term limits, said life tenure is inappropriate now “given the enormous power that Supreme Court justices have come to wield.” They also said that with fewer regular high court vacancies, the political stakes are high and “the confirmation battles have become much more intense.”
• But “lifetime appointments contribute to the stability of the law,” said Richard Vining, who teaches political science at the University of Georgia. He contended the “problem” of life tenure is exaggerated, for the most part.
• In the past four decades, the average tenure of Supreme Court justices has grown from about 15 years to more than 25 years.
• In no state are Supreme Court judges appointed for life.

In other reports and commentaries on the heels of Kagan’s confirmation hearings, the process itself comes in for further scrutiny.

“If the three days of questioning that Elena Kagan endured proved anything, it’s that these sessions have outlived their usefulness,” wrote Mark Greenbaum in Slate.

And a Politico article suggested that at least in the eye of critics of the process, “After trashing it as a ‘vapid and hollow charade’ in a 1995 article, Kagan the Supreme Court nominee did little, if anything, during her confirmation hearings to cure the ills Kagan the critic diagnosed 15 years ago.”

This was not a universal view, however. In a National Law Journal article, David Ingram wrote that “the popular analysis misses a lot that Kagan did tell the nation,” including the “outline of a judicial philosophy,” hints dropped about abortion rights and same-sex marriage precedents, and even a peek at her personal politics.

Justice at Stake covered the Kagan hearings on Twitter, and you can check out the Twitter reports by clicking on http://twitter.com/justicestake. You also can learn more about Kagan from Gavel Grab and from the JAS Replacing Justice Stevens page.

Full post as published by The Gavel on July 06, 2010 (boomark / email).