Stopping the smears

There were a couple of newsy stories out of the Alito hearings yesterday, one being the Specter smackdown of Ted Kennedy; the other was Mrs. Alito breaking down and fleeing the room in tears. Both are part of the larger story: Trying to defeat a judicial nominee through character assassination.

It doesn't have to be this way, and I'm not talking about Democrats respecting a Republican president's right to select conservative judges. Although obviously that would solve the problem too.

A nominee for any other office might also be smeared, but generally in a way that goes to whether he's qualified for the job. John Bolton's much-maligned people skills, for example, were relevant to his being U.N. ambassador. What college organizations Sam Alito joined 35 years ago, not so much.

Why do the D's do it? Two reasons:

First, there's only one question Democrats want answered, and the nominees can't answer it: Will you vote to uphold Roe v. Wade? They can't answer because they'll likely have to rule on it within a year of joining whatever court they're nominated to. It's almost a rite of spring: every year, some state legislature slams a hammer on this decades-old monument to judicial imperialism. And the Planned Parenthood lawsuits start all over again.

So another way to eliminate the smear tactics would be for the Supreme Court to reverse Roe. But that's a long way off. Republicans are still one or two presidential elections away from a solidly conservative court. And frankly, if Scalia and/or Thomas retire, we may never get there.

One simple thing that would help a lot, however, would be to let nominees answer the question: Do you believe Roe was correctly decided? Half the people who might be nominated for judgeships have already answered that question in their writings. Might as well get the other half on record.

The second reason for the smears is lifetime tenure. Americans' lengthening lifespans just make these positions too high-stakes. Rehnquist was on the court for close to 35 years. If Scalia serves to age 90, he'd log 40 years. If Thomas serves to 90, 47 years.

Solving that problem's not so easy, because it takes a constitutional amendment. But I think we'll see it happen in 10 or 15 years. All but three states have ditched lifetime tenure. Law professors are warming to the idea (they seem to like fixed 18-year terms). I prefer retention elections, used by a plurality of states, because they exert a small measure of accountability on the courts. They allow good judges to serve as long as they want and provide an excuse to retire at a reasonable age. With 18-year terms, Scalia would've left the court in 2004, and Thomas would be out in 2009. The latter's an especially scary thought. Who might be president in 2009? Could it be ... Satan?

Lots more on ending lifetime tenure here if you're interested.

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