Presidential Commission on the Supreme Court of the United States
four-year term.[18] Most Presidents have had either one or two opportunities, and a small number have been very lucky and received four or more. But sometimes Presidents get none at all. This situation has occurred more frequently since the mid-1970s. In the 188 years from the presidency of George Washington to the presidency of Gerald Ford, there were only five presidential terms out of forty-seven (just eleven percent) in which Presidents did not get an opportunity to make a Supreme Court appointment.[19] But in the forty-four years from Jimmy Carter to Donald Trump, Presidents did not make a single appointment in three out of eleven terms (twenty-seven percent)—and four out of eleven terms if we include Senate Republicans’ refusal to consider the nomination of Judge Merrick Garland during President Barack Obama’s second term.
Again, proponents of term limits do not seek partisan balance. According to proponents, if a party wins the White House more often, its Presidents should have the opportunity to nominate more Justices, though this opportunity may be checked, as with all judicial appointments, by the Senate’s advice and consent. But, proponents emphasize, our current system allows parties to shape the composition and influence the direction of the Court to a degree that does not necessarily reflect their record of electoral success over time.[20] They argue that the existing system—buffeted by chance illness or deaths, possible strategic behavior, and aggressive political tactics—makes it easier than it should be for parties that lose elections to nevertheless have outsized impact on who sits on the Court and on its general direction.
Another justification offered for term limits is that they would largely eliminate the possibility of “strategic retirements” and, just as importantly, the perception that Justices retire for strategic reasons. Through strategic retirements, Justices attempt to control the future direction of the Court by creating openings when there is a particular President or Senate majority. Conversely, Justices may remain on the Court, even if they are no longer up to the job, because they are waiting for a different President to select their replacement on the Court. This kind of strategic calculation, or the perception of it, can fuel public beliefs that the Court is a partisan institution. It can contribute to the perception that the system is unfair or rigged, in part because strategic retirements prevent Presidents from receiving a roughly equal number of appointments for each term in office. Moreover, the possibility that Justices might retire strategically can lead to public relations campaigns to push a Justice to retire precisely so that a particular President can appoint a successor. Though it may be impossible to know why any particular Justice chooses to retire at a particular moment, term limits could put a stop to both the possibility and perception of strategic retirements. Under one possible design of term limits
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