By: Paul Jacob
Last week, the Senate Judiciary Committee grilled Judge Neil Gorsuch, President Trump’s nominee for the U.S. Supreme Court. Talk about a silly rite. Senators repeatedly fired questions about specific legal views that no High Court nominee ever answers.
Why not? Because for a prospective justice to answer would be to pre-judge possible future cases that might come before him or her.
That didn’t prevent displays of faux-outrage from committee Democrats, though. “You have been very much able to avoid any specificity,” Sen. Dianne Feinstein (D-Calif.) criticized, “like no one I have ever seen before.”
In Washington, isn’t that a compliment?
Into this kabuki theater, Republicans added their own special inanity. Channeling March Madness, Sen. Ted Cruz (R-Tex.) had to banter with Gorsuch about the basketball court located in the Supreme Court building. Cruz once clerked for Chief Justice Rehnquist, while Gorsuch once clerked for Justice Byron White. “How was his jump shot?” Cruz asked.
Then, Sen. Jeff Flake (R-Ariz.) went fishing, inquiring of Gorsuch, “What’s the largest trout you’ve ever caught?”
So that is how to determine whether to confirm someone for a lifetime position.
But even a lifetime doesn’t beat Congress. Elected every two years in the House or six years in the Senate, congresspersons often rack up longer tenure than do Supreme Court justices appointed for life.
The longest serving justice in our history was William O. Douglas, who spent nearly 37 years on the High Court. But if Douglas had spent that epoch in Congress, he wouldn’t place first, but 80th.
In fact, three Judiciary Committee members — Senators Patrick Leahy (42 years), Chuck Grassley (42 years) and Orrin Hatch (40 years) — have already served longer than any High Court justice in all of American history.
Interestingly, of the 20 longest-serving justices, half served before 1900. Conversely, 19 of the 20 longest-serving members of Congress and all of the 20 longest continuously serving members of Congress served after 1900. In other words, longevity for justices has been relatively constant, while for those running for re-election — term after term after term in pursuit of a congressional career — the change in modern times has been dramatic.
In both the House and Senate, the average tenure of representatives and senators is more than double what it was throughout the first 100 years of congressional experience. Today, the average Representative or Senator has already been entrenched in Congress for roughly a decade.
As a recently released report by the Congressional Research Service explains, “Two underlying factors appear to influence variation over time in the average years of service for Members of Congress: the decision of sitting Members whether or not to seek election to the next Congress, and the success rate of Members who seek election to the next Congress.”
The CRS report notes that the percentage of incumbent congresspersons defeated for re-election “increased during the 19th century, remained constant for the first half of the 20th century, and then decreased during the second half of the 20th century.” Today, the advantages of incumbency are so great that an incumbent, especially in the House of Representatives, is almost certain to win re-election . . . barring an indictment.
Last November, a whopping 98 percent of U.S. House incumbents were re-elected. That’s at the same time the public approval rating for Congress was only 18 percent. Hmmm?
Still, another factor looms large: Congress has become a very cushy job. It proves difficult to leave a position featuring power, perks, and pelf.
In early America, nearly half of congressmen decided not to run for re-election at the end of their term. The CRS found that “prior to 1887 no Congress saw fewer than 25% of Representatives not seek re-election.” Today, knocking down annual pay of $174,000 along with lucrative pensions and other lavish benefits, only about 10 percent of those in Congress decide to leave voluntarily each election.
The bottom line is clear: longevity is far greater in the modern Congress, peopled with professional politicians, than for Supreme Court justices with lifetime tenure.
It’s time for term limits. In fact, long past time.