CNN Legal Analyst: Framers Never Envisioned Supreme Court Justices Living Past Their 50s

July 10, 2018

CNN legal analyst Jeffrey Toobin had a novel argument Tuesday for why Supreme Court nominations have become stiffer political battles in recent years.

Former U.S. Acting Solicitor General Neal Katyal said the confirmation fight for President Donald Trump’s nominee Judge Brett Kavanaugh is a "big deal" because he will be able to serve for decades if confirmed. After Katyal named some of the expansive rulings from retiring Justice Anthony Kennedy, Toobin said the current norm defies how the Founding Fathers envisioned Court nominations.

"When the Constitution was written in the late 18th century, people were expected to die in their 50s," Toobin said. "The Framers never contemplated that these terms would regularly go to 30-plus years as they do now."

Life expectancy was significantly shorter in the 18th century, largely due to those who died when they were young. However, many adults lived well past their 50s, including all the presidents of the Founding generation. President George Washington lived to be 67, John Adams to be 90, Thomas Jefferson to be 83, James Madison to be 85, and James Monroe to be 73.

Toobin said he was glad average life expectancy has improved so much, but he said his point stands that it has changed the nature of Supreme Court fights.

"I’m glad everybody's living longer, but that’s what raises the stakes on these nomination fights so much more, because they serve so long," he said.

Toobin reacted strongly to Kennedy's retirement being announced, and his analysis on CNN has stressed the downsides of Trump selecting another conservative judge. He has warned in alarmist terms that various legal precedents, such as Roe v. Wade, are under threat. Going back to Justice Neil Gorsuch’s appointment, Toobin said his seat was stolen by Senate Majority Leader Mitch McConnell (R., Ky.) from Merrick Garland, former President Barack Obama’s nominee.