Never before in American history has a president, elected by so few, sought to influence so many so far into the future. President George W. Bush is determined to have his hand-picked justices dominate the judiciary for the next 35 years. By nominating young ideologues to the Supreme Court and the appellate courts, Bush is essentially seeking to exercise power through his surrogates on the bench for many decades beyond his constitutionally permissible term. Nor will this be his only legacy to our children and grandchildren. By creating an unimaginably large debt, he is burdening our progeny to the fourth and fifth generations. Finally, by bogging us down in Iraq for years to come, he will be exercising influence on our military and foreign policies well after his successor takes over the Oval Office.
All this from a President who came to office by losing the popular vote but winning the vote in the Supreme Court by 5-4, with the five all being loyal Republicans. He was then re-elected by the thinnest of majorities, and his current approval rating couldn’t get him elected regardless of the number of justices he had in his pocket.
It is doubtful whether he now has a real “mandate” even to impose significant and controversial changes over the lives of Americans during his remaining few years in office, but how can anyone even begin to claim he has a mandate to influence the lives of Americans not yet born or not old enough to vote.
The framers of our Constitution never intended the lifetime appointment of justices to last 35 years. The average lifespan of an American at the time our Constitution was drafted barely exceeded 35 years. Our first president nominated 14 justices during his 8 year tenure because the average term a justice served was far less than 10 years.
There is no good reason, in constitutional or political theory, for the Senate to defer to the President’s choice of justices or judges who will serve well beyond his term. There is good reason to defer to a president’s choice of cabinet members who serve with him and only during his term. But these considerations have little relevance to the judiciary, which is an independent branch with life tenure.
Senators, especially those who are not asked to “advise” on the nomination, should feel no obligation to “consent” if they believe that the lifetime service of a nominee would not be good for our children and grandchildren.
On a more fundamental level, we should seriously consider term limits for the justices and judges – perhaps one non-renewable term of 15 years, with staggered resignations that would assure every president at least one nomination to the high court.
A system that made sense when life expectancy was in the 40s makes little sense at a time when life expectancies may soon reach into the 80s and 90s. It is too easy for an ideological president to exploit this system by appointing younger and younger and more and more ideological candidates to our courts. This is precisely what George W. Bush is doing, and the senate should not let him get away with it.