Do you think Ruth Bader Ginsburg did the liberals a disservice by staying so long?

[MarkD]

To try and reduce some of the problems with federal Judges, I would suggest a constitutional amendment to prescribe a minimum age of 50 and a mandatory retirement age of 70.

No, that's two very arbitrary rules that would potentially deprive us of some great legal minds.

Back in the early 19th Century, two men were appointed to the Supreme Court at the age of only 32 years old. One of the two was Joseph Story, who was pretty easily the greatest Supreme Court Justice of the entire 19th Century. His influence on American law was and still is very widespread.
In the 20th Century, William O. Douglas was appointed when he was 40, Potter Stewart was appointed when he was 43, Byron White was appointed when he was 44, and Clarence Thomas was appointed when he was 43. Do you think these men were too young to be appointed?

Another one of the Court's greatest legal minds ever was Oliver Wendell Holmes, and he stayed on the Court until he was 90 years, 10 months old, the oldest Justice to ever serve. Much more recently, John Paul Stevens retired when he was 90 years, 2 months old. There was nothing wrong with either of them staying on the Court until that age.

Your choices for minimum and maximum ages for membership on the Court, if they had been implemented from the beginning, would have deprived us of a little more than half of Story's magnificent career and more than two-third of Holmes's career. What if we have, right now, in this country, an outstandingly objective interpreter of law who is only 40 years old -- you would make him wait for 10 whole years before he can be appointed? Why? What if there's another outstandingly objective interpreter of law who is 65 years old and who gets appointed at that age, and is so healthy he or she could easily live another 25 years; you would force them to retire after only 5 years? Why?

Your choices are arbitrary and based on a dismal assessment of human nature.

[MarkD]

-snip-

I think we need a new way of nominating Justices. Perhaps the President alone should not be the one nominating Supreme Court Justices. Maybe some form of bipartisan commission would work best (perhaps a 5-member commission consisting of the President, Speaker of the House, House Minority Leader, Senate Majority Leader, and Senate Minority Leader). That commission could only nominate a Justice with at least one member of the minority party of the total commission in support (or maybe even a unanimous vote). The Senate would then be required to vote on the nominee within a certain period of time. With this setup, the confirmation threshold could be increased to a 2/3 majority.

I prefer the recommendation made by Alan Dershowitz about 19 years ago in his book "Supreme Injustice: How the High Court Hijacked Election 2000," published in 2001.

"The time has come to change the criteria for Supreme Court nominees and to depoliticize the process of appointing justices. ... (Page 202.)
"The first step must be to distance the process from partisan politics and to demand that greatness be the major criterion for appointment to the high court, as it is in many other countries, and as it has often been in the history of this nation. The Senate and the president could begin by jointly appointing a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criterion of greatness, without regard to party affiliation, race, gender, ideology or other such factors. After a through investigation, this list would probably be pared down to about ten candidates. The president would be expected -- though he could not be compelled -- to pick a nominee from that pared-down list, unless he could produce good reasons why another person, not included on the commission's list, qualifies as a potentially great justice. Any name selected from the commission's list would carry a strong presumption of confirmability by the Senate." (Page 203.)

Dershowitz does not know how to define the "greatness" of a lawyer or judge, but in my opinion, it would necessarily include a strong commitment to objectivity.