Editor’s Note: Michael J. Broyde is a professor of law at Emory University School of Law and the Berman fellow in the Center for the Study of Law and Religion. The opinions expressed in this commentary are solely those of the author. Read more opinion articles on CNN.
The tongues are wagging: Justice Stephen Breyer should – some Democrats claim – retire now. The Senate is evenly balanced and Vice President Kamala Harris can break all ties which would allow President Joe Biden to select a younger liberal to the bench. It is hard to know if this is really correct – in an evenly divided Senate, it takes just a single senator to defect and defeat a nominee. Maybe an 82-year-old justice in good health is better than an uncertain confirmation hearing?
But the real question is whether the system for selecting Supreme Court justices can be better, and it is no secret that President Biden has created a commission to consider such better ways. Indeed, at every recent confirmation of a Supreme Court justice, commentators advocate 18-year term limits for justices and propose that regular and scheduled appointments will solve the current confirmation battles.
I doubt 18-year terms for justices is the solution: even if term limits were imposed, we would still face similar confirmation battles, albeit scheduled far in advance. Before explaining the real confirmation problem and why this should incline Justice Breyer not to resign, it is worth focusing on what is wrong with term limits for justices – what is right is obvious, in that it gives each president two appointments for every four-year term of office which fairly distributes judicial appointments and ensures that every appointment by one president is counterbalanced by another in the next term.
Four problems readily arise from term limits. Most importantly, many justices have had landmark accomplishments far after the 18-year mark – Justice Breyer included. In office since 1994, Justice Breyer has grown only more eloquent and thoughtful with better opinions and more thoughtful views. The nation would be judicially impoverished if he had stepped aside in 2012.
There are other problems with term limits as well. First, judges at the end of their term start looking for a new job and could be biased in favor of possible employers – Justice Breyer would have been a youthful 73 and would have surely been tempted to work in a law firm. Second and related, having a cadre of youthfully retired Supreme Court justices as partners in law firms is itself deeply problematic: they provide insider access in complex ways – everyone would have liked to hire former Justice Breyer to handle their Supreme Court case. Third, one could worry that justices in a term limit model will become politicians after their term expires and that would be just exceedingly bad for our nation. In short, the price we would pay for changing the policy of justices currently working until infirmity or death is high.
But, more importantly, term limits will not solve the current confirmation problems. Think about it: would any Republican senator support Justice Breyer’s successor once nominated since they are “only” serving an 18-year term?
Rather, confirmation battles, including Justice Breyer’s inevitable successor, are brutal now for three inter-related reasons. First, Supreme Court justices play a very important role in our society. Indeed, being a Supreme Court justice might be – over time – the most important job in the nation. Second, we have no agreement on how justices are to decide cases and so different justices decide matters quite differently. Third, justices serve for a very long time; the impact they have is measured over decades unlike most politicians. Simply put, being a Supreme Court justice is a hugely important job with a great deal of discretion to it.
Going back to President Ronald Reagan (and perhaps Lyndon B. Johnson), the discretion and importance of the Supreme Court has produced the confirmation problem which ensures that it is extremely difficult to confirm a justice when the president and the Senate are controlled by different parties and no one should doubt that this is also true when the Senate is evenly divided, as it is now.
Who might actually be confirmed to replace Justice Breyer if he resigns right now is hard to know. Whomever the President nominates would have to attract the vote of every single Democrat in the Senate – from Sen. Bernie Sanders to Sen. Joe Manchin – to be confirmed along party lines with the Vice President breaking the tie. It is possible that no person would be confirmed for a while with all the problems that might produce on the Court with only eight justices, six of whom have been appointed by Republican presidents.
The life expectancy of an 82-year-old healthy male today is more than seven years, according to data of the Office of the Actuary of the Social Security Administration. Undoubtedly, life expectancy is longer for a justice given the excellent health care they receive. Justice Breyer is still producing excellent work and has shown no signs of either ill health or mental decline. There is no reason for him to retire until he is unable to do his job. The longer he delays his retirement, the longer he spares a healing nation another vicious confirmation battle in an evenly divided Senate.
There is no reason for Justice Breyer to resign, and there are good reasons for him to continue doing the excellent job he is doing. Live long and prosper, Justice Breyer!