Associate justice Ruth Bader Ginsburg of the US supreme court was operated on last week in New York for pancreatic cancer, an especially virulent form of the disease. Fortunately, she was diagnosed early, so her prognosis may be significantly better than the statistical averages. She apparently has expressed a hope to be at the supreme court when it resumes hearing oral arguments on February 23.
Rightly or wrongly, the illness of the 75-year-old justice, who joined the court in 1993 as President Bill Clinton's first appointee, has provoked much discussion among those interested in the US judiciary as to her possible retirement and potential successor. As to the latter, there is almost unanimous agreement that President Barack Obama would pick a woman to succeed Ginsburg, and the most-often-named candidates invariably include two distinguished sitting federal judges, Sonia Sotomayer from New York and Diane Wood from Chicago.
A third oft-named candidate, Elena Kagan, who was appointed to serve as the solicitor general from her spectacularly successful deanship of the Harvard Law School, is probably a far more likely appointee two or three years from now. Sotomayer would become the first Hispanic member of the court (her family is from Puerto Rico). Wood would bring the particular advantage of being a specialist in anti-trust law, which might well be beneficial given recent developments in the US and world economy.
Obama will almost certainly have several opportunities to place new faces on the court. Justice David Souter, who is nearing the end of two decades of service on the court, is widely thought to dislike living in Washington and to relish the prospect of being able to return to his native New Hampshire on the full salary available to him as a 15-year veteran on the court. And, of course, justice John Paul Stevens, appointed to the court in 1975, will turn 90 in 14 months.
Still, even the retirements of Ginsburg, Souter and Stevens would not give Obama a genuine opportunity to remake the court inasmuch as all are identified with the wing of the court – there is a debate whether they are best labelled "moderates" or "liberals" – that is often found vigorously dissenting from the opinions of the conservative majority.
As interesting as speculation about resignation and replacement might be, at least to court-watchers, it is more important to discern what lessons might be learned about America's peculiar, and close to unique, form of judicial tenure. In the modern world, almost all judicial systems operate under systems either of limited term-appointments (often 10-12 years) or ostensible "life tenure" with an age limit (usually some time between 65-75 years).
What is unusual – some might even think bizarre – about the American system is that "life tenure" means just that: Once a federal judge is appointed and confirmed, he or she can remain in office until death terminates the appointment. Thus the phenomenon of Stevens being in his 34th year of service, the same number of years attained by the late chief justice William Rehnquist, who died in office at 80 from a thyroid cancer for which he had been receiving chemotherapy.
Emery law professor David Garrow published an article several years ago demonstrating the relative frequency with which supreme court justices have remained on the court even after they had clearly entered into various stages of debilitation. The most serious example was surely William Douglas, who would not immediately resign even after suffering a serious stroke. His colleagues refused to count his vote in any 5-4 case where it would have made a difference.
It is fair to say that no country drafting a constitution today would be tempted to follow the American model. Endless life tenure has almost literally nothing to be said for it. Any reasonable desire to maintain judicial independence could easily be achieved by, for example, appointing justices for non-renewable 18-year terms, with full-salary pensions at the end of service. (This would have the advantage both of generating a new appointment every two years and preventing even a two-term president from being able to pack the court with a majority reflecting his or her own ideological preferences.) An 18-year term would eliminate justices Scalia, Kennedy and, very shortly, Thomas from the present court, with justices Ginsburg and Breyer to follow them in two and three years, respectively.
That would not, however, speak to the problem of an ill or debilitated justice within the 18-years. Yet any constitutional drafter should be aware of the possibility. The US constitution presents one possible model in its 25th amendment, which applies to the potential debility of a president. The cabinet, by recognising such debility, can arrange for the succession by the vice-president. And it has now become customary for presidents facing short operations to sign over their powers to the vice-president for the hours during which they will be under sedation.
One might imagine, for example, that judges facing operations and recovery, might be temporarily replaced during their periods of necessary absence, though they would be welcome back upon recovery. Sitting in for them might be retired justices. Thus, should justice Ginsburg need more time to recover, why shouldn't retired justice Sandra Day O'Connor return to the court and thus provide a full complement of nine justices?
This would, among other things, prevent the awkwardness of the court's inability to reach a decision because of being split 4-4. Given my own politics, I would not in fact be delighted by the substitution of justice O'Connor for justice Ginsburg, but that should be irrelevant if one is talking about how best to design a system for the future that recognises the inevitability of illness and absence as an alternative to retirement and full replacement.
Ginsburg's illness should provide a learning opportunity for anyone interested in constitutional design. Unfortunately, it is probably unlikely to do so in the US itself, which believes, altogether falsely, that the constitution is above criticism. But other countries around the world – or the EU itself – might exhibit greater imagination.