-Source-New Republic-
A good deal of the uproar over the confirmation of Brett Kavanaugh to the Supreme Court stems from the expectation that he will remain there for three, perhaps even four decades. The Constitution, most people believe, mandates that judges be appointed to the bench for life, unless they commit a crime or other impeachable offense. As only one Supreme Court justice has ever been impeached—Samuel Chase in 1803—and none convicted, removal for cause is unlikely at best. Because it is assumed lifetime tenure is enshrined in Article III, any attempt to alter that arrangement would require an amendment, another unwieldy and improbable prospect.
But the Constitution enshrines no such thing, at least not overtly. That should be the inevitable conclusion, anyway, from jurists like Kavanaugh who subscribe to textualism: the theory that the law, including the Constitution, should be interpreted solely based on the plain meaning of its text, rather than taking into other considerations such as the authors’ intentions. And if that were the case, ending lifetime tenure on the court would be easier than people realize.
Still, with lifetime tenure the accepted norm, a few decades ago it occurred to some politically savvy operatives on the right to select judges young enough to serve almost in perpetuity. The first of these nominees was also the most contentious—Clarence Thomas in 1991. The Anita Hill storm aside, Thomas was neither considered a brilliant legal scholar nor possessed of a long history of judicial achievement. He had only been a judge for 18 months. But, at age 43, he was the youngest person to be named to the court in the twentieth century, with the exception of William O. Douglas. That he was chosen for the seat previously held by the towering Thurgood Marshall only inflamed passions more.
But conservatives were quite pleased with the outcome. Thomas, almost as controversial on the bench as he had been getting to it, has been widely regarded as the court’s most conservative justice, to the right of even former Justice Antonin Scalia. As a result, Republican presidents now only nominate men—except for the unfortunate Harriet Miers, they have yet to suggest a woman—who can serve for many decades. Kavanaugh is 53; Neil Gorsuch was 49 at the time of his nomination; John Roberts, 50; and Samuel Alito a relatively ancient 55.
These ages would not have been surprising 150 years ago, since “the average American male in the 1800s could expect to make it [only] to his early- or mid-40s.” But life expectancy is now quite a bit longer, and so, on average, “justices are serving longer tenures now than at any point in the court’s history,” according to Bloomberg. Read more
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