Rehnquist Staying Put

Chief Justice Rehnquist is tired of the virtual death-watch the media have been keeping outside his home, and has made a surprise announcement: he has no plans to retire.
Rehnquist says he will serve “as long as my health permits,” and I take him at his word. However, he was often absent from the bench last term, and he has recently been hospitalized twice, if I’m not mistaken. One of the terrible consequences of the politicization of the Supreme Court–the inevitable result of the Court’s arrogating to itself the role of a super-legislature–is that justices often have a strong incentive to stay on too long, especially when a President of the opposing party is in office. That doesn’t apply to Rehnquist, of course–although the tactics of naming his replacement might be influencing his timing–but it certainly applies to John Paul Stevens, the 85-year-old liberal. I’m told that Stevens lives in Florida and mostly performs his duties from there. It’s hard to believe that Stevens would hang on for three more years, but for the hope of a Democratic President to name his replacement. Whether Stevens is able to hold on that long, of course, remains to be seen.
As for Justice Rehnquist, I think it is a good thing for him to stay on the Court for a while. If President Bush were in the position of naming two Supreme Court nominees at once, I’d guess the Democrats could get away with blocking one of them. It’s better for the nominees to be taken in sequence, separated by a decent interval.
The broader point, though, is that some kind of reform of Supreme Court tenure (and perhaps federal court tenure in general) is in order. Whether it is appointment for a fixed number of years, or maybe a mandated retirement age, it seems pretty clear that an ideal system would not incentivize justices to stay on the Court into their 80s or 90s to uphold their party’s point of view.

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