Monday, September 12, 2005

What's wrong with Roberts

The formal hearings are just beginning, but I like what I've seen of John Roberts. He is eminently qualified, widely respected, personally likable, principled but not dogmatic. He is an excellent nominee for the nation's highest court, and Bush should be commended for breaking with the post-Bork custom of nominating justices deemed unobjectionable due to their mediocrity. Judicial appointments are among a president's most important decisions, and nominations like this one easily outweigh my gripes with Bush's moves on assorted other issues, domestic and foreign.

I must register one note of protest, though: John Roberts is too young to be appointed to the Supreme Court, let alone as Chief Justice.

It's not about his qualifications, which are unimpeachable. Primarily, it's about the dignity and prestige of the court as the nation's highest tribunal. Serving on the Supreme Court should be the pinnacle of a distinguished career, not a mid-career promotion for a young jurist, however brilliant. Let Roberts continue to serve his country (or his clients) for another ten years or so before he joins the nation's senior court.

For Bush, Roberts's age is reportedly a plus. It gives him the chance to influence the court for a generation, health permitting. That is precisely the second reason to object to young justices. Lifetime appointments give the Supreme Court an important stability over time, with members replaced incrementally and sporadically. But that stability must not become rigidity; a modest rate of turnover of justices is healthy for the court and for the balance of the national political system, as different presidents and different political pressures contribute to shaping the court's contours.

The current vacancies on the court are the first in over ten years, the result of previous presidents themselves nominating young justices. On the most recent court: Rehnquist took office at age 47, Stevens at 55, O'Connor at 51, Scalia at 50, Kennedy at 51, Souter at 51, Thomas at a sprightly 43, Ginsburg (the oldest) at 60, and Breyer at 56. (Interestingly, Clinton's nominees were the oldest of the group.) It's telling that O'Connor is the first justice to leave the court who was appointed since 1980.

Of course, I'd rather have an excellent nominee such as Roberts despite his youth than a more senior but mediocre nominee. But it would be nice to have both.

Still, I can hardly fault Bush for doing the same as all of his recent predecessors. The fault is the system of life appointements, which tempts presidents to appoint young justices. The simple solution, as others have proposed: A term limit for justices. An eighteen year term would be long enough to ensure judicial independence and a fruitful career, while ensuring an average turnover of one justice every two years.

However brilliant or wise, no one should spend longer than that as one of the nine individuals empowered as the ultimate interpreters of the U.S. Constitution. That's enough absolute power for one lifetime.

Postscript: My pet pick for the court is a brilliant jurist and political thinker, combining wisdom and erudition, a man who is easily qualified to serve as chief justice: Robert Bork. I don't know if he'd accept the nomination, but today's Senate could easily confirm him, and doing so would give conservatives great satisfaction by succeeding where Reagan failed. I can dream, can't I?


kaspit said...

Maybe his hair will turn white, or whatever happened to Elazar b Azariah.

Kol tuv,



Zman Biur said...

I had thought about mentioning him, but decided I had gone on long enough.

(I don't think his hair turned white; I think he started to show some grey hairs. That can indeed happen at an early age.)