Page:EO 14023 Commission Final Report.pdf/120

 Proponents of term limits caution that one should not confuse the argument that the Court’s composition should reflect electoral outcomes over time with a claim that Presidents have a right to make the Supreme Court generate a particular set of results. In our constitutional system, judges and Justices are not and should not be considered the mere representatives of political parties or the creatures of a particular President, and the argument for term limits does not rest on such assumptions. Moreover, Presidents may appoint Justices for many reasons other than the hope or expectation that the Justice will support the President’s particular policy agenda or constitutional philosophy. Presidents may wish to achieve geographic or demographic diversity on the Court, attract new voters through the selection of a nominee, or choose a Justice with a particular set of professional experiences. And history shows that Presidents cannot necessarily predict the path a Justice will pursue; Justices often confront new issues in contexts quite different from the circumstances in which they were appointed. Thus, the argument for regularized appointments is not an argument for making Justices the representatives of Presidents or a particular ideology. Rather, according to proponents, the ability of Presidents to nominate Justices at regular intervals that would be afforded by term limits, coupled with the Senate’s authority to advise and consent, would help ensure, at least in the long run, that “[t]he political balance of the Court would reflect the opinions of the people over time as expressed in their choice of presidents and senators, rather than the happenstance of health or accident or the strategic timing of the justices.”

Proponents underscore that the value of term limits in advancing these constitutional principles is heightened by various ways in which the consequences of life tenure have changed over time. In particular, the average length of Justices’ terms has expanded. Life spans have lengthened and modern Justices may increasingly delay retirement. Up until the late 1960s, the average term of service was around fifteen years. By contrast, the average tenure of the Justices who have left the Court since 1970 has been roughly twenty-six years. In the future, it’s quite possible that tenure will continue to lengthen, as several recent Justices have been younger than their predecessors and life spans generally continue to grow. The increasing length of the Justices’ terms, in turn, raises the stakes of each nomination. Political partisans may press for nominating younger candidates in the hope that they will serve longer and thus allow for the entrenchment of particular views on the Court for three or more decades into the future.

Proponents also note that the variation in the number of each President’s opportunities to nominate a Justice has become more pronounced. Throughout history, the median, modal, and mean number of chances for a Supreme Court appointment has been approximately two per