This week brings Senate hearings on yet another Supreme Court nomination. Each time, it seems to go according to the same partisan script. I will not expressing a political opinion on this issue, but here is a medical one: Supreme Court appointments should not be for life.
As distinguished as Chief Justice Rehnquist's career may have been (I wouldn't know, I'm not a lawyer), I was appalled at how it ended. Here was a man, the Chief Justice on arguably the most important court in the world, presiding over cases of national importance with active thyroid cancer and within weeks of his death. From what I know about end-stage cancer, there is no way this man could have been fit to make the decisions he was making. I put off major decisions when I have a bad head cold. Would you want a man a few weeks from death by cancer operating on you? Flying your jet plane? How about babysitting your newborn daughter?
This may seem harsh. Justice Rehnquist was, in his best days (the nineteen seventies!), truly an able and intelligent man. The secrecy of the Supreme Court being what it is, we may never know how much his skills eroded at the end. We do know that the man had a tracheostomy tube during his last term. We also know he refused to resign, even though he missed 44 oral arguments in his last year in office. And we know that the Bush inauguration was preceded by weeks of speculation about whether Rehnquist would be physically able to swear the president in. I do not know much about law, but swearing someone into office does not seem physically demanding to me.
This is not intended as a personal indictment of Rehnquist. Rehnquist may have been a staggering intellect, but he was human, just like the rest of us. And like the rest of us, he was afraid of death. Afraid that if he interrupted his gentle tread that he would wither away. Emily Dickinson, another dead person, said it well:
Because I could not stop for Death –
He kindly stopped for me –
We often think if we keep ourselves busy that the Inevitable will pass us by, but it never does.
Rehnquist was a Supreme Court Justice for 33 years. Ten years seems like a more appropriate term. Somewhere around a decade in the same job and the mind turns and the job becomes not a chapter but the whole novel. Like being a doctor. When you are a doctor for a little while it feels like a job, but the longer you are at it the more you start signing MD after your name on credit card receipts and raffle tickets. The job becomes you. And you start to think reflexively: as long as the job exists, I will exist. But it doesn’t work that way. The job will outlast you.
Once a person thinks a job is his forever he ceases to worry about his fitness for it. This may not be a big problem for elevator operators. For Supreme Court Justices, it is.
Doctors have to undergo recertification every 7 to 10 years, depending on the specialty. Though it is easy for me to get my dander up about having to reprove myself every decade or so, the lesson is that it is not about me. It is about the patient. I can argue that I have some rights, and perhaps I do, but not compared to my patients. If I am incompetent I have to go. The trouble with the Supreme Court is that there is not even a mechanism for re-evaluating fading judicial skills.
When the founding fathers ratified the Constitution, average life expectancy in the U.S. was about 35 years. This is deceiving, however, because there was a high infant mortality and a high death rate among pregnant women during delivery. Take these skewing factors out and for the average male who survives childhood (the typical early American voter), life expectancy was probably in the late 40s or early 50s. Elderly people were the exception, but not rare – Thomas Jefferson, 83, and John Adams, 91, were examples. Still, it is doubtful that any of the Framers thought 33 years in the Supreme Court would frequently happen. And yet, our last Chief Justice went 33 years, our current one, John Roberts, is 50 and could easily go that long. Sandra Day O’Connor hung it up after 25. John Paul Stevens is in his 31st year, and Antonin Scalia is in his 21th. Scalia, a relatively young 69, could roll on for another 15 years, if he follows Stevens’s example, and takes his medication like a good boy should.
The lifetime appointment was designed to insulate the Judicial Branch from the foibles of Congressional politics. Fine, but through the miracle of modern medicine, this strategy safeguarded against one foible and exposed another. Far be it for me, a doctor, to say that medical advances have allowed people to outlive their usefulness. But I will argue that it allows people to live well beyond their peaks. When I walk into the Supreme Court chamber, I want to see 9 peaks. That is not too much to ask.
Instead, what we get is people who have peaked and don’t have the good sense to admit it. The more your judgment slips the less likely you are to see that in yourself. Every drunk on the road thinks he is safe to drive.
Certainly we should accept an individual if he is the best available, even if he is not at his personal best. If we are trapped on a jet in a 1970s airline disaster movie, the two pilots are dead and the only experienced pilot on board is a 117 year-old World War I vet who flew air mail in the 1920s and now likes scotch too much, we take him. But with the number of lawyers we have in this country, I dare you to convince me that the very best one is 85 years old. If this is true, why not replace Rehnquist with another octogenarian?
A ten year term would help guarantee that our top court gets only the best. Every ten years, judges would be up for renewal. This would allow Congress to pick off the weaklings. This system works great for the Chairman of the Federal Reserve, and many would contend that that position is more important than any seat on the Supreme Court. The concern, I guess, is that with appointment renewals justices would be more easily influenced by public opinion. They would be more likely to bend to public pressure when they are up for re-election, so-to-speak. Okay, but that seems to me a fair price to pay to get people out of the court who have Parkinson tremors so bad that their signature looks like a seismic tracing. By our current system, a guy like that doesn’t get outed until God takes him. I love God as much as the next man, but sometimes His sense of humor is a little too arcane for politics.
This change might politicize the judical branch a bit. This is not all bad. Most judges, though they would never admit it, would rather go to their graves thinking they had been booted because they voted to overturn Roe v. Wade rather than because they had lost too many cerebral neurons. Let them think that. Sometimes we forget that one of the purposes of politics is to paper the ugly truth over. There is nothing wrong with allowing worthy public servants the dignity of political outrage instead of the public exposure of infirmity.
If you think I am ageist, consider this: a ten year term might open the door for older candidates. If I am in the White House, I do not consider nominating a 65 year-old for a lifetime appointment. Too many potential health problems, not enough good years on the bench. On the other hand, with ten year appointments, 65 doesn’t look so bad for a candidate in good health.
Being a Supreme Court Justice is either easy or hard. If it is hard (and we are told that it is), then we should have a keen interest in keeping people in there who are at their sharpest. If it is easy, so easy that an 83 year-old a with metastatic thyroid cancer can do it, then I still don’t see the fuss about eliminating lifetime appointments. Because if it is that easy, any nine people you round up off the street on a given Monday morning would be more than adequate.