President Obama nominated Elena Kagan to be our next Supreme Court justice two weeks after her 50th birthday. If confirmed by the Senate, she’ll be two years younger than the average age of her eight colleagues at the time of their confirmations. Ruth Bader Ginsburg, who was 60 when she joined the Court, and Clarence Thomas, who was 43, are the outliers. The other six justices were all between 50 and 56 the day they donned the black robes. John Paul Stevens, whom Kagan would succeed, was 55 when he joined the Court in 1975.
Supreme Court nominations are among any president’s most consequential decisions. Since justices serve until they retire, die, or are impeached, presidents are reluctant to select older nominees and thus squander the chance to influence the Court three or four decades into the future. The rule, especially recently, is to find justices old enough to have distinguished themselves but young enough to spend the next several decades making rulings that will gratify the president who nominated and the senators who confirmed them.
At the same time, however, presidents have become increasingly determined that the Supreme Court should more closely resemble the country demographically. With this goal in mind, why not expand the age range of prospective justices to include candidates well into their sixties? The highest court in the land needs the best people we can put on it, regardless of age. The current selection process favors prospective justices who showed great promise at a relatively young age but winnows out those who accomplished big things later in life.
The way to level the playing field—to give older potential justices the same chance to join the Court as the relative whippersnappers—is to amend the Constitution to limit all justices to a term of 16 years on the Supreme Court, twice what the Constitution allows presidents. With the ratification of such an amendment, presidents could make their nominations on the merits, without worrying that selecting an older justice would forfeit their ability to influence the Court over the long haul. A 16-year term limit would negate a 50-year-old Elena Kagan’s advantage over a 65-year-old Lewis Powell.