The Kagan Nomination

Elena Kagan's nomination to the Supremes will doubtless occupy the attention of the chattering classes for much of the summer. Predicted discussion: her views on abortion, how liberal she is really, whether it matters that there's another woman on the court, the fact that there will be no "Protestants" on the court, whether she prefers the company of women over men and whether that ought to matter.

And we'll hear about her age. At 50 and given the apparently rejuvenatory properties of Supreme Court membership, Kagan could serve for forty years.

That's why we are ready to discuss something else: a constitutional amendment that will establish the number of justices on the court and limit their terms to 16 years.

The first move is to prevent what nearly happened under FDR--the stacking of the court by a powerful POTUS with a compliant Senate. The second is to prevent POTUSes appointing ever-younger candidates to serve ever-longer terms, extending the Presidential potency well beyond its natural and constitutional limits.

We imagine an amendment that would retire current justices over the next eighteen years, in order of their appointment, at a rate of one every two years. Thereafter, terms would be set, appointments would occur in a reasonable sequence, and any justice unable to fulfill a term would be replaced only for the duration of that term.

Thus would all POTUSes appoint two justices, none to be more influential by length of tenure than any other. Thus would the Supremes morph slowly but surely along the lines of the body politic as a whole.

We think this is a spiffy idea that will not be adopted, largely because the present body politic lacks the patience to endure the Constitutional amendment process.