Ruth Bader Ginsburg, 85, goes missing from Supreme Court. Is it time to end life tenure?

Speculation is rife over the health of Justice Ginsburg, who has missed her third straight day of hearings following cancer surgery. Now it seems Washington needs to consider term limits for the Supreme Court.

With much of the country distracted by the government shutdown over the Mexican border wall, another issue of potentially far greater importance is lurking in the background – the health of Supreme Court Justice Ruth Bader Ginsburg, or ‘RBG’ as she is popularly known.

Ginsburg, 85, has been absent from the Court ever since she underwent surgery to remove two malignant tumors from her left lung on Dec. 21. The absence marks the first time in 25 years that RBG has missed oral arguments. Naturally, this news has put Washington, hyperactive on the calmest of days, into hysterical crazy mode. That’s because Donald Trump may find himself in a position to fill a third Supreme Court vacancy, a feat last accomplished by Ronald Reagan.

Lionel, a regular RT commentator and host of his own podcast, summed up the significance of the situation: “Let me remind you that the court is at a 5-4 conservative-liberal makeup,” he wrote via email. “Conservative Brett Kavanaugh replaced the conservative [Anthony] Kennedy and still it was a confirmation bloodbath. With an RBG replacement the court shifts 6-3 conservative. And with [Stephen] Breyer, a spry 80, eyeing theoretical retirement, his departure would make the court 7-2 conservative…”

In other words, the Republicans look set to establish conservative legal precedent across the American heartland long into the future, and this has the Democrats very worried.

According to a report by Politico, the Trump administration is already “taking the temperature on possible short-list candidates,” a move that will most likely attract accusations of ‘opportunism’ from the Democrats. Yet it seems that the archaic institution of life tenure has made such unsavory calculations regarding replacements unavoidable. The fact is RBG is in the advanced stages of life and in poor health. More worrisome, there is the possibility that she is no longer capable of doing her job. Yet, because she is protected with life tenure, she cannot be removed by democratic due process.

Welcome to graying Capitol Hill

These days, a visitor to Washington, DC may be forgiven for thinking the capital more resembles a retirement village than the nation’s seat of ultimate power. Indeed, few politicians seem enthusiastic about quitting their jobs these days.

Here’s a short list of the senior citizens now occupying top government positions: Nancy Pelosi, Speaker of the House, 78; Senator Chuck Grassley, 85; Senate Majority Leader Mitch McConnell, 76; Dianne Feinstein, oldest member of the Senate, 85; among the Democrats’ vintage presidential material – namely Bernie Sanders, Hillary Clinton and Elizabeth Warren – they are 77, 71, and 69, respectively. Donald Trump, meanwhile, is pushing 73 years old, or about six years over the official retirement age. Funny how all of this aging on Capitol Hill has not translated into more wisdom. But I digress.

Complain as we may at the collective ‘maturity’ of our leaders, it is we the people who have kept them in power, some well beyond their recommended shelf life. However, the one branch of government that is not held accountable by democratic due process is the Supreme Court. Here, nine unelected justices – with an average age of 65.7 years old – serve out life-long tenures. The average tenure for each judge has increased to approximately 26 years, and with life expectancy improving that figure will only rise.

The question with regards to life tenure for Supreme Court justices seems reasonable: will they be able to effectively perform their jobs when they are entering their eighth and ninth decade of life? Although it seems that the body wears out faster than the brain, and many elders remain mentally agile, it is undeniable that the cognitive abilities deteriorate over time. To cite just one study, it was found that 20-year-olds performed a particular problem, which involved substituting symbols for numbers, almost 75 percent faster on average than 75-year olds. How this translates into the ability of an octogenarian to grasp the complexities of a modern court case is anybody’s guess.

Americans condemned to life tenure?

At this point, people may be wondering: What is the advantage of granting Supreme Court justices life tenure in the first place? The Founding Fathers believed that the judicial branch required a high degree of autonomy and independence from the executive and legislative branches. They believed life tenure would allow the justices to lay down the law, as it were, without political bias. Imagine the absurdity: nine apolitical justices hammering out laws in a political vacuum. But as the philosopher Aristotle understood, “human beings are by nature political animals.” Subjective political bias could never be set aside, especially at such a pivotal level of government.

A brief overview of some of the most explosive Supreme Court cases proves political bias runs deep in the Court.

Amid extreme political infighting, the Court ruled in favor of women’s rights to have an abortion (Roe v. Wade, 1973); the legalization of same-sex marriage in all 50 states (Obergefell v. Hodges, 2015); and the right of Americans to possess firearms for self-defense (District of Columbia v. Heller, 2008). And perhaps the most (in)famous case of all, the Supreme Court played kingmaker in the 2000 presidential election by ruling that George W. Bush was president even as the state of Florida was mulling a recount (Bush v. Gore). Not democracy’s finest hour.

To this day, these monumental cases and others have carved a deep chasm across America that only promises to widen over time.

Ginsburg herself proved the volatile level of political partisanship when she crossed a red line by discussing the Left’s ultimate bogeyman, Donald Trump, just as the 2016 presidential election was heating up.

“I can’t imagine what the country would be — with Donald Trump as our president,” Ginsburg said in an interview. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”

Such toxic partisanship makes it necessary for each political party to keep ‘their’ justices at the bench, even when it is no longer physically possible. Or, conversely, it sets the stage for the other party to play spoiler, doing everything to block a nominee from consideration. The Republicans did this in 2016 when they refused to hold a vote on Obama’s nominee, Merrick Garland, following the sudden death of justice Antonin Scalia. All this sets the stage for more bipartisan bickering down the road, reminiscent of last year’s circus involving the nomination of Brett Kavanaugh.

What is the answer to resolving this unsightly impasse? One way would be to make justices submit to democratic procedure like any other government officials. This would make the outdated practice of life tenure obsolete. Another way is to set definite term limits.

As the Economist suggested: “A more workable change would be to appoint justices for single 18-year terms—staggered, so that each president gets two appointments per term—rather than for life.”

“New blood would make the court more vital and dynamic.”

All things considered, the concept of ‘life tenure’ might work fine for kings, queens, and popes, but it has no place in a democracy where the people actually expect some results from their elected officials.

@Robert_Bridge

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