Page:EO 14023 Commission Final Report.pdf/129

 constitutional court, considered one of the strongest constitutional courts in Europe, is composed of judges who serve twelve-year non-renewable terms and who must retire at age sixty-eight.

As this experience in the states and other countries suggests, there is a case to be made for twelve-year, non-renewable terms if the structure of the Court is considered in isolation from the larger political circumstances of the appointments process. With twelve-year terms, each presidential term would involve three regularly scheduled appointments. In addition, a President elected for two terms would have the power to appoint six regularly appointed Justices. Even if a constitutional amendment for term limits would to some extent reduce the intensity of political conflict over Court appointments, however, three appointments every four years would put the Court at the center of the political process on an almost yearly basis. There are also reasons to be concerned that enabling a single two-term President to make six appointments gives one person too much power to reshape the Court. This tradeoff has led most proponents of term limits in the United States to endorse an eighteen-year term. For simplicity’s sake, and in the light of these considerations, we will use an eighteen-year term limit to ground our analysis.

That said, circumstances could change, making potential turbulence less of a risk. If so, the costs and benefits of a twelve-year term as opposed to an eighteen-year term might be weighted differently than at present. For this reason, the designers of a constitutional amendment might consider whether the amendment should give Congress the power to adopt prospectively a twelve-year term (that is, to adopt a statute that would take effect for Justices appointed after the date of enactment). Drafters should take care to hew to the core purpose of such an amendment by ensuring that each President receives the same number of regularly scheduled appointments.

The designers of a constitutional amendment to implement a term limit system must make several choices related to the timing of the reform.

First, drafters must decide when the amendment would take effect. The amendment could, of course, take effect upon adoption. If there is concern that knowledge of who the sitting President is at the time the amendment takes effect would make it more difficult for the amendment to be adopted, the amendment could be structured to take effect starting at some