Misjudging

27 October 2004


Rehnquist Has Cancer Operation

Chief Justice William Rehnquist, one of the five people whose votes truly mattered in the 2000 election, spent last week-end at Bethesda Naval Hospital for a tracheotomy to relieve his breathing. The judge has thyroid cancer. The good news is that this particular brand of cancer is quite treatable, and survival rates are remarkably high. The bad news is that, at age 80, Mr. Rehnquist’s health remains a concern. It is a flaw in the American constitution that the man who wins next week’s presidential election may be able to appoint a majority of the judges for the next generation.

This journal remains suspicious of unbridled democracy’s ability to produce wise government, but at the same time, it is certain that unaccountable magistrates are a far greater evil. Thus, the appointed, life-time tenure of American judges is corrosive and harmful to the body politic. This is exacerbated by the increased judicial activism of the left and the right over the last 40 years – the difference between passive corrosion and active damage.

The current Supreme Court is made up of individuals who are well-advanced in years. In addition to the chief justice, Justice Stevens is an octogenarian at 84. Justices O’Connor and Ginsberg are in septuagenarians (74 and 71 respectively), while four are in their sixties: Justices Scalia and Kennedy are 68, Justice Breyer is 67, and Justice Souter is 65. The kid on the court is Justice Thomas at 56. Add to this the fact that the four oldest have or have had cancer (Mr. Stevens: prostate, Ms. O’Connor: breast, and Ms. Ginsberg: colon), and one begins to see the possibility of four vacancies relatively soon. And a surprise mishap could make five easily enough.

The current court’s members have served an average of 18.34 years. There is little reason to believe that any new appointees would have significantly less longevity. And indeed, if the president selects someone similar in age to Justice Thomas when he was appointed, the next intake of judges could easily serve 30 years.

The Kerry campaign is using the fear of anti-choice judges to motivate women voters, and the Bush crowd is using the fear of banning religion by judicial fiat to get the evangelical voters to the polls. What neither campaign says is that there is no reason for America in 2035 to be bound by executive decisions made in 2005. When the constitution was drafted in 1787, judges didn’t live to 80 or 90 very often – few citizens of any calling did. Antibiotics, anesthetic and sanitation have changed that. The time to limit the term of the judges is long past.

© Copyright 2004 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.

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