Age is a key variable for members of the Bush administration charged with picking a successor to Sandra Day O'Connor. A recent Washington Post article, for example, indicated that former Solicitor General Theodore Olson "may be too old at 64 because the president will want someone who could be on the bench for 25 years or more, some insiders say." Indeed, most of the persons rumored to be on the president's "short list" are barely 50.
There are many things that could be said about Olson, but that he is "too old" is not one of them, unless, of course, one shares the desire of the Bush administration to lock up the current Supreme Court so that it would be impervious to a course reversal until 2030 (when Clarence Thomas, appointed at age 42, could be well into his fifth decade of service).
Life tenure is a pernicious feature of the modern American judicial system, especially when applied to the Supreme Court. Judges regularly stay on the court well past their prime, often in desperate attempts to survive until a president of their party can make the appointment of their successors.
Moreover, life tenure generates a perverse incentive — that we can see operating in front of our eyes — for presidents to seek young nominees as part of a lock-up strategy that is designed to prevent a switch in voter preference for the White House from actually having an effect on the membership of the Supreme Court.
Two Northwestern University scholars, James Lindgren and Steven Calabresi — a founding father of the Federalist Society, incidentally, so not someone who would be expected to be critical of Republican lock-ups — have shown that from 1790 to 1970 the average length of service of Supreme Court justices was approximately 16 years. Since 1970, however, the average length has gone up almost a decade, to more than 24 years.
William Rehnquist has been on the court for 34 years, 19 of them as chief justice; his immediate predecessors, Warren Burger and Earl Warren, together served only 32 years. Judges should have the self-discipline to know when to retire, but they clearly do not. Another scholar, David Garrow, demonstrated in a University of Chicago Law Review article several years ago that all too many justices have stayed on the court even after they had become seriously debilitated. (The most egregious instance was William 0. Douglas, who refused to resign even after a serious stroke; his colleagues secretly voted in effect not to allow Douglas to cast a decisive vote in 5-4 cases.) However much one might admire Rehnquist's personal valor, it is, frankly, a scandal that the seriously ill chief justice refuses to resign. Such long terms are a disservice both to the court and the country.
What would be best is getting rid of life tenure and adopting, say, 18-year non-renewable terms of office, with each president getting two guaranteed appointments per term. This would go a long way to limit the problem of the debilitated judge. Alas, such a sensible proposal is not on the current agenda, in part because even most scholars who oppose life tenure believe — wrongly, I think — that it would take a constitutional amendment to end the practice. (This is Calabresi's and Lindgren's view, which is disputed by, among others, Duke University professor Paul Carrington and Cornell University professor Roger Cramton.)
In the interim, then, Democrats should learn from the White House and make age an issue. They should announce, in advance, that they will be far less inclined to filibuster someone who is Olson's age than someone who is indeed likely to serve a full quarter-century. This has the advantage of being not only good politics, but also good for the country. It is not a question of ideology, but, rather, of preventing partisan lockups.
Democrats — and the country at large — might learn an extremely valuable lesson from the recent papal conclave. Pope John Paul II might have been a great and revered pope. But if there is anything that the election of the 78-year-old Cardinal Joseph Ratzinger made clear, it is that the College of Cardinals wanted to make sure that another such extended reign does not occur again. Seventy-eight may strike one as a bit too old as a desirable age for a new member of the Supreme Court, but surely Theodore Olson's 64 is not. Thus the new rallying cry for the upcoming battle should be: "Don't trust anyone under 64!"
Sanford Levinson, a University of Texas law school professor, celebrated his 64th birthday on June 17. He wrote this for the American-Statesman.