JONATHAN CHAIT SEPTEMBER 1, 2011
Rick Perry's platform may consist of great heaps of terrifying reactionary obscurantism, but it also features a couple nice little dollops of reassuring liberal reform. Here's one of them:
One solution the governor embraces is to end lifetime tenure — a cornerstone of the Constitution, whose drafters worried far less about activist or senile judges than about meddling tyrants and political pressure. ...
In the book, Perry only alludes to how he would change judicial tenure, referring to a plan that would stagger Supreme Court terms so there’s a retirement every two years. In that plan, justices would get 18-year terms, to ensure that no single president gets to pick a majority of the nine-member court.
The current system of lifetime tenure creates real problems. Huge policy swings hinge on the simple health and longevity of Supreme Court justices. This results in very old justices clinging to their seats until a sufficiently friendly president can take office. It also gives presidents an incentive to nominate the youngest possible justice who can be confirmed, as opposed to the most qualified possible justice. And eliminating some element of the sheer randomness by which each party gets to appoint justices would tend to reduce the chances of the court swinging too far one way or another from the mainstream of legal thought.
It's hard to imagine the incentive structure for any president to propose such a reform -- why volunteer to the the first president whose judicial nominees don't get lifetime tenure? But it is slightly reassuring to see glimmers of sense in Perry's platform.