Stay on the job, Justice Breyer

Michael J. Broyde is a professor of law at Emory University School of Law and the Berman fellow in the Center for the Study of Law and Religion. The opinions expressed in this commentary are solely those of the author. Read more opinion articles on CNN. The tongues are wagging: Justice Stephen Breyer should -- some Democrats claim -- retire now. The Senate is evenly balanced and Vice President Kamala Harris can break all ties which would allow President Joe Biden to select a younger liberal to the bench. It is hard to know if this is really correct -- in an evenly divided Senate, it takes just a single senator to defect and defeat a nominee. Maybe an 82-year-old justice in good health is better than an uncertain confirmation hearing?
But the real question is whether the system for selecting Supreme Court justices can be better, and it is no secret that President Biden has created a commission to consider such better ways. Indeed, at every recent confirmation of a Supreme Court justice, commentators advocate 18-year term limits for justices and propose that regular and scheduled appointments will solve the current confirmation battles. I doubt 18-year terms for justices is the solution: even if term limits were imposed, we would still face similar confirmation battles, albeit scheduled far in advance. Before explaining the real confirmation problem and why this should incline Justice Breyer not to resign, it is worth focusing on what is wrong with term limits for justices -- what is right is obvious, in that it gives each president two appointments for every four-year term of office which fairly distributes judicial appointments and ensures that every appointment by one president is counterbalanced by another in the next term.
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