A report earlier this month explained how nearly two-thirds of Americans believed there should be a mandatory retirement age for Supreme Court justices.  An 84-year-old Democrat, Opal Bristow, was even quoted saying, “Some of [the justices] are old codgers who need to get out of the way and let the younger folks with fresh ideas come in.”  Comments such as this, and polls like the ones conducted by the Associated Press to accompany their article, demonstrate a very clear and terrifying fact about the majority of the American population: they don’t understand the first thing about the way the Supreme Court is supposed to work.

Supreme Court expert Dennis Hutchinson, from the University of Chicago Law School, correctly told the Associated Press that the “appointment of justices without term limits or a mandatory retirement age historically has helped to insulate the court from politics.”  By allowing the justices to serve at their pleasure, it eliminates the opportunity to political bean counters to use their calculators and formulas to discern with any accuracy when the next vacancy in the Court will arise.  Such calculations would undermine the Court and essentially eliminate the ability of a president to nominate judges and expect an up or down vote on the judge’s nomination.  There is already the calculating pundits, but their numbers have no validity.  There’s no way of knowing when a justice will pass away, retire, or get too sick to serve.

Imagine it this way: if Justice Clarence Thomas were to face mandatory retirement next month and it was well-known and expected that Justice Ruth Bader Ginsberg would face mandatory retirement two months later, there would be deal-making and concessions required to make sure that comparably conservative or liberal members were nominated to replace them and thus keep the court “balanced.”  It’s an unfair method to undermines the process.  The president is given the constitutional guarantee of nominating judges and the Senate is supposed to have that up or down vote – although incoming Senate Minority Leader Harry Reid will no doubt follow in his predecessor’s footsteps and never permit allow a floor vote to occur.  To allow an up or down vote on a Supreme Court justice would mean that Bush’s nominees would win in a walk, and liberals would lose their activist allies on the bench.

The Supreme Court is supposed to be completely devoid of politics and political influence once the nomination and confirmation battles are complete – and constitutionally speaking, even the political fighting that does occur is wrong.  Everyone loves to complain about the Supreme Court’s political leanings – Bush v. Gore immediately springs to mind, but realistically it is supposed to be devoid of politics.  Putting a retirement age of the Supreme Court justices would even further erode the ideals upon which the Supreme Court was founded.

The other benefit of allowing the justices to retire at their leisure is that their views have traditionally slowed the inevitable broadening of Constitutional rights and interpretations of the document.  The Supreme Court is designed to interpret the Constitution and apply it to the many issues that currently exist in whatever era the court oversees.  By having older people on the court, it naturally slows down the revisionist aspect of it and helps the document maintain some level of consistency through time.

It works because no one knows when the next justice will retire.  This typically would eliminate the Court from the arena of presidential discourse, although the 2004 election was an exception to this rule because there were no vacancies during Clinton’s second term nor Bush’s first.  For the political soothsayers, that means the ever-increasing likelihood that a vacancy will occur in the next four years.  There is still no guarantee of a vacancy, however, Chief Justice Rehnquist’s illness notwithstanding.  There hasn’t been a vacancy on the Supreme Court in more than ten years, one of the longest periods in history without an appointment, and that demonstrates the beauty of the lifetime appointment system.  You can’t control that when the justices choose to retire.  Modifying that would change the entire process and the Supreme Court would become even more politically motivated than it is already accused of being.  A mandatory retirement age of 65 would mean that eight of the nine justices would be forced to retire – assuming that it was instituted immediately, which of course it would not be.  It certainly would not, nor should it, fall to President Bush to replace that many judges.  But, can you imagine the political bickering that would occur if a retirement age is ever established?

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