It is now widely understood that presidents must value youth in their Supreme Court nominees. The reason lies in the combination of two factors: life tenure and the party system. Because justices serve for life, presidents can increase their influence on the law by choosing young nominees. Given two-party competition, this incentive can provoke an unhealthy game of how-low-can-you-go: If one party nominates young justices, the other party risks ceding long-term control of the judiciary if it does not choose justices who are at least as young. As a result, it is hard for anyone much older than 50 to be a serious contender to fill David Souter's seat.
Things have not always been this way. Between 1945 and 1980, both parties wanted their nominees to dominate the Court, but the locus of competition lay in winning presidential elections, and perhaps in choosing effective justices, rather than in choosing young ones. In that period, there were 18 new justices, and their median age upon appointment was 55.5 years. Crucially, 55.5 was the median age for the eight Democratic appointees and also for the ten Republican appointees.
That equilibrium unraveled in the 1980s, when the Reagan administration made youth part of its well-planned strategy for reshaping the federal courts. Subsequent Republican administrations followed suit. Since 1980, three Republican presidents have appointed seven justices, and with the exception of Samuel Alito, who was 55, none has been older than 51. The Democrats have not kept pace: The only two Democratic appointees during the same period, Stephen Breyer and Ruth Bader Ginsburg, were 56 and 60 respectively. This time, with Democrats keenly aware of their minority status on the bench, the pressure on the president will be intense to pick someone who is 50 at most.
That's too bad. Not because 50 is too young for a good justice; some people are perfectly ready by that age. (Pamela Karlan is 50, and she is about as capable a constitutional lawyer as is biologically possible.) But age and wisdom are at least sometimes correlated, and foreclosing consideration of more senior candidates means excluding people who might make terrific justices. Often the best person for the job might be someone with another ten years of experience as a judge, a lawyer, or even just a citizen. Today, even candidates in their mid-50s are acceptable only if President Obama is at peace with continuing to give up a half-dozen years, on average, to his Republican counterparts. And nothing prevents a future administration from pushing the ceiling down from 50 to 45.
The best solution is to amend the Constitution and replace life tenure with a single, nonrenewable term of 15 or 20 years. Retired justices would receive their full salaries as pensions (just as they do now), and they would be forever barred from other paid work and from holding other offices. Such a system would make justices just as independent as life tenure does, if not more so. The restrictions might seem heavy-handed, but they are unlikely to dry up the supply of candidates for the job of Supreme Court justice. And under such a system, presidents would be more able to choose the strongest candidates. If a president thought that a particular 50-year-old or even a 45-year-old were the best person for the job, so be it. But there would be no reason to prefer a 45-year-old to a 50-year-old, nor a 50-year-old to a 55-year-old. Within a range of about a dozen years, age would be irrelevant.
A fixed term would also help democratize the court. Obviously, the judiciary should be independent of the electorate in the short term, and judges should never simply follow political winds rather than engaging in their best efforts to reason about the law. But the Supreme Court of a constitutional democracy should also share mainstream public values in the long term. In our system, the primary mechanism for achieving that goal is presidential selection of justices. If it works properly, presidential selection enables different political coalitions to shape the court in the same rough proportion as they are able to persuade the public of the wisdom of their worldviews over a series of electoral cycles. But given life tenure, justices can partly frustrate that long-term feedback mechanism by timing their retirements to choose which political party will appoint their successors. Fixed terms would not eliminate that possibility, but they would substantially reduce it.
Similarly, a fixed term would remake the court every four or five presidential election cycles, rather than letting the distant past continue to hold sway. (Most of the justices sitting today were named by presidents elected during the Cold War, and the party that has won the popular vote in four of the last five presidential elections has appointed only two of the nine justices now sitting.) Finally, a fixed term might mitigate the aristocratic aura that surrounds the court and that justices can let go to their heads if they are not constantly vigilant. One healthy aspect of the rule of law is the idea that offices are not personal; but the boundary between office and occupant tends to erode when the occupant has the right to be there forever. (The Constitution forbids titles of nobility, but in a world where you keep the job until your death, "Supreme Court Justice" is close.)
Unfortunately, imposing a fixed term would almost certainly require a constitutional amendment, and that is a tall order. So if ending life tenure is not in the cards, then as a second-best solution, Congress could enact a statute setting a minimum age--55, say, or even 60--for membership on the court. The Framers established minimum ages for Congress and for the presidency but left the matter unaddressed for judges. Given what we now know about the two-party system, it might make sense to impose a similar rule on the third branch.
A minimum age regime would limit the field of candidates--but perhaps no more than the de facto maximum age regime that now prevails. It would err on the side of greater experience, and it would limit the youth race at a reasonable point. It would also secure at least some of the other benefits described above, including raising the chances that the justices would reflect the democratic decisionmaking of the last several election cycles. To be sure, the same partisan dynamics that create the youth problem in the first place would dissuade Congress from enacting this reform during a period of unified government. But it might seem more attractive in a lame-duck session or, better yet, at a moment of divided government when the judiciary is in rough partisan balance.
Two constitutional worries might cloud consideration of imposing a minimum age requirement for judicial office. The first, which concerns age discrimination, is surely not a problem. Settled doctrine requires only a rational basis for laws that discriminate on the basis of age. The policy concerns motivating this reform would easily qualify, as the Constitution's own age minimums for all of the other federal offices it creates would attest.
The other possible obstacle is what constitutional lawyers know as the Thornton issue: Are the Constitution's own stated qualifications for office the only permissible qualifications, or are they a floor to which more qualifications may be added? This question is more debatable. In a deeply divided 1995 decision, the Supreme Court ruled that states may not add qualifications for serving in Congress to the age, citizenship, and residency requirements laid out in the Constitution itself. But adding qualifications to an existing list might differ from prescribing qualifications on a clean slate--and the Constitution says nothing at all about who may be a judge. Moreover, existing practice indicates that Congress is not barred from imposing any qualifications on judges: Congress already requires federal circuit judges to be residents of the circuits where they sit.
Some people will balk at the prospect of altering a part of the system the Framers designed. But on this issue, we have a critical advantage over the Framers: We have seen the party system operate. We cannot know whether the Framers would have instituted life tenure for judges if they had known what we know. But we do know that in the current two-party environment, life tenure is causing problems. Whether by amendment or by statute, we should find a solution.
Richard Primus is Professor of Law at the University of Michigan and John Simon Guggenheim Memorial Foundation Fellow in Constitutional Studies.
By Richard Primus