"Lifetime tenure for Supreme Court Justices is another of the ideas from 200-plus years ago that might well be adjusted if Madison, Adams, et al had a chance to re-do the Constitution in light of current circumstances. ... Average life expectancy at birth during the late 1700s was 30-some years, versus 70-some now. Of course that figure is misleading, since so many people died very young--and those who reached age 50 often chugged along into their 80s. Still, circumstances have clearly changed. ... As a result, actuarial considerations have become fundamental to the modern nominating process, to what the Founders would recognize as a distorting degree. It is a 'wasted' appointment to choose someone over age 60, since a nominee in his or her 40s (Clarence Thomas, age 43 when chosen) or early 50s (Elena Kagan, 50) can likely cast that many more votes over the years. The idea that we're locking in policy for the next three or four decades makes the confirmation process all the more embittered and partisan--and dishonest, as nominees, whether John Roberts or Elena Kagan, pretend they have no settled views."
- The Atlantic's James Fallows, writing on the Kagan confirmation
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