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Tuesday, Feb. 06, 2001

In Washington legal circles, the rumor mill is working overtime promoting the idea that Justice Sandra Day O'Connor will step down in June when the current Court term ends. In addition to whispers from "well-informed" but unnamed sources, support for this notion comes from O'Connor's much-discussed election night comments, expressing horror at the possibility of a Gore victory, as well as what Court observers describe as her newly petulant attitude during oral argument.

Previously I have written that I did not think O'Connor would soon retire. As the Court's swing vote on virtually every significant case, she is its most powerful member. Arguably, she is the most important woman in the world, wielding the single-handed power to define the civil rights and liberties of every American.

At the same time, O'Connor is only 70 and in apparently good health, works a very manageable day, and knows well that other Justices in recent decades, including her predecessor on the Court, Potter Stewart, declined rapidly after retirement. All things considered, I would have thought that only Chief Justice William Rehnquist, 78 and reportedly tired of his job, was the only sure retirement in the next few years.

The Problem with Politically Timed Retirements

Recent history confirms this notion. It was long rumored that Byron White, despite generally conservative leanings, considered himself to occupy a "Democratic" seat on the Court — and he was the first Justice to retire after the Democrats regained the White House in 1992, after a 12-year GOP run. Harry Blackmun, the most recent retiree, made no secret of the fact that he worried about dying in office while a conservative President had the power to name his successor.

But the fact that politically timed retirements have been commonplace does not justify the practice. Court history, especially in the modern era, is littered with Justices who stayed on at the Court long after they had lost the spiritual zest and physical stamina to well-fulfill the enormous responsibilities of the job.

The recent debacle of Bush v. Gore highlights the danger of wait-for-the-next-election retirements. Because of this practice, the 5-4 vote handing the White House to George W. Bush has raised the specter that some of the conservative justices, yearning for retirement, suffered from an inherent and serious conflict of interest when deciding the case. (Of course, had the vote come out the other way, this charge might now be leveled at Justice John Paul Stevens, the oldest member of the Court and a leading liberal, rather than at O'Connor and Rehnquist).

A Possible Solution: A Constitutional Amendment Abolishing Life Tenure

In the wake of this case and while memories are still fresh, the time has come to consider a constitutional amendment abolishing life tenure for the Justices and replacing it with a system of staggered fixed terms of, say, 18 years with a two-year wait between appointments.

A Few Cautionary Notes: Potential Problems with the Amendment

I make this suggestion, of a new constitutional amendment, with trepidation. I'm not yet sure it's a good idea. But the nation should be considering some change to a retirement and selection process that has run off the rails — and it is worth noting a few pros and cons here.

Looking back over Court history, it must be acknowledged that a single-term system would have robbed the Court of more than a decade of service from several of its most noteworthy members, including Oliver Wendell Holmes, William Douglas, Hugo Black, and William Brennan.

More Strong Reasons to Amend

But who can really argue that the last years of these Justices' respective tenures saw them at their best? Douglas left the Court an invalid, finally yielding to mental and physical incapacity after his colleagues cut him out of all the close cases. Black's significant contributions all pre-date his final years. The same is true of Brennan, whose legendary behind-the-scenes statesmanship had given way to shrill partisanship at the end.

Eighteen years is a good long run. It would give justices more than enough time to find their footing at the Court and make a mark on the law, while it would also protect the Court's inner vitality against the drain of age, infirmity, bitterness, and boredom.

In addition, the uniformly staggered terms would bring some needed predictability to the political process for choosing the Court's membership. At election time, voters would know exactly which justices would be leaving the Court — and could, if they wished, select their presidential candidate accordingly. Meanwhile nomination and confirmation battles might not assume such apocalyptic importance if regular turnover at the Court were assured.

Naturally, individual justices could beat the system by retiring early, and untimely deaths might intervene. But a system of interim, non-renewable appointments to fill out unused portions of each fixed term might discourage early departures and would, in any event, keep the system on track. Even if a justice retired early hoping to ensure a successor who shared his or her party affiliation, the successor would only finish out the justice's own term — thus thwarting that hope; the justice might as well have served out the term himself or herself.

Critics of the Court, and of the current state of the confirmation and nomination process, rarely offer more than marginal reforms of doubtful and unenforceable effect — such as paying judges more, or limiting the nature of senatorial questioning of nominees. Perhaps now, with so many people recognizing that the Court and the system for its replenishment are in serious distress, we should, for a change, be thinking big.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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