Proposal: “Instead of lifetime tenure, each justice could be appointed to a finite term. If the justices served for 18 years, every president could appoint two justices during each four-year term.”
Advantages?
“First, by ensuring that each president has an equal opportunity to appoint justices, the proposal would reduce the arbitrariness of the current system and make the court more reflective of the changing political world.”
“Second, the current system effectively disqualifies the most experienced candidates — those in their 60s and 70s — because presidents understandably want their imprimatur on the Court to last as long as possible.”
“Third, the proposal would reduce the risk of justices remaining on the court as their faculties diminish, either because they are unaware of their limitations or are holding out until a like-minded president is elected.”
These are the thoughts of Mark Trachtenberg and Kent Rutter, developed in more detail in their editorial recently published by The Houston Chronicle and available here.
Trivia: Name the last Justice to depart the Court without serving at least 18 years.
Lewis Powell is the answer, I believe. The 18-year proposal has been developed at length by Paul Carrington and Roger Cramton and joined by other profs, including me. It is an ingenious solution to a very bad problem.
Bill, Lewis Powell is indeed the correct answer (taking his oath on 1/7/72 and terminating his service on 6/26/87). Chief Justice Warren Burger comes in second (taking his oath on 6/23/69 and terminating his service on 9/26/86).
See http://www.supremecourtus.gov/about/members.pdf
"Ingenious" is a most interesting word. I always pause, thinking it may mean "not genious."
And, amazingly, you have to go back to the disgraced Abe Fortas, 1965-69, to find someone who lasted less than ten years.
PS. I may never be a genious, but I think I've been ingenious a few times.
You may have to go back to Abe Fortas to find someone who lasted less than ten years, but it used to be quite common for justices to last less than 18 years or even less than 10 years. I suspect you'd get a lot more short-term justices if presidents picked more Abe Fortas's or even George Mitchell's for the Court, and fewer career judges whose life-long ambition is to be a Supreme Court justice — as presidents have done since, well, the whole Abe Fortas thing.
I recommend Crowe and Karpowitz, "Where Have you Gone, Sherman Minton?" http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813
From the 1960's, Arthur Goldberg had a tenure even shorter than that of Abe Fortas. Baseball fans may recall that Curt Flood retained Goldberg as his "Supreme" oral advocate in his landmark antitrust challenge against major league baseball and its "reserve clause." For a fascinating account of Flood's crusade, see my earlier post here:
http://www.thefacultylounge.org/2009/03/a-wellpaid-slave.html