The FBI has until the end of the week to investigate sexual misconduct allegations against Brett Kavanaugh, U.S. President Donald Trump’s pick for the Supreme Court. After that, the American Senate will vote on whether to confirm him to the country’s top court.
It’s a job with unlimited tenure. If confirmed, Kavanaugh — who is just 53 — could hold the position for the rest of his life: Thirty or even 40 or more years. But should he? Should anyone?
“The fact that it is so difficult to remove a judge is central to judicial independence,” says Daphne Gilbert, associate professor of law at the University of Ottawa.
“It is virtually impossible to remove a judge unless there is some very serious misconduct and that’s how we understand the importance of the job.”
While lengthy tenures do have their benefits, they have their drawbacks as well. And if you were to quantify them, Eugene Meehan, a lawyer at Supreme Advocacy in Ottawa who specializes in appellate litigation and is a member of the U.S. Supreme Court Bar, says the cons of a lifetime appointment outweigh the pros.
“It’s something that may encourage the partisan politics of the day because all proponents in the process know that the person is there for literally as long as they can be.”
That’s been clear throughout Kavanaugh’s nomination process.
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As more allegations of sexual misconduct and assault have been leveled against Kavanaugh, the process has become increasingly divided along partisan lines. Some have said they sympathize with Dr. Christine Blasey Ford —who testified about her alleged assault before the Senate committee — but ultimately dismiss the allegations as an anti-Republican ploy.
Even before Kavanaugh was named as Trump’s official pick, many experts made it clear whoever Trump picked could lead to the reversal of Roe v. Wade, America’s landmark abortion case.
That’s because U.S. Justice Anthony Kennedy voted to uphold Roe in 1992. His particular retirement paves the way for a conservative choice to join the court, providing the fifth vote that would be needed to finally overturn the 1973 ruling.
It’s that type of thinking that can result in “political maneuvering,” Gilbert says.
“You get judges who hold on past the time when they would be better off leaving because of the government of the day.”
Here, Gilbert references Ruth Bader Ginsburg, the 85-year-old Supreme Court justice who seems to be holding off on retiring until the next Democratic president. That Ginsburg didn’t retire when President Barack Obama was in office has been called everything from a gamble to a selfish decision.
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This isn’t to say that Canadian judges are any less political, says Carissima Mathen, vice-dean with the University of Ottawa’s faculty of law, just that the public doesn’t see the court itself as partisan.
“In the United States, it’s increasingly clear that the court is viewed as a partisan institution,” Mathen says, which can be of genuine concern.
“The idea that you would have pure political factors determining a lifetime tenure with no possibility for generational shifts in the political landscape to affect the court, that’s potentially a problem for the legitimacy of the court.”
Far from being a solution, experts say short tenures would raise their own set of issues.
“They’re invariably thinking about what they’re going to do next,” Mathen says. “The idea is you don’t really want them to be thinking about what they’re going to do next.”
Not just because it would be odd to see a young Supreme Court Justice retire from the top court only to go back to actively practising law, but also, Gilbert says because you don’t want them to “be bribed or tempted by the promise of more lucrative work after the fact.”
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Canada’s mandatory retirement age of 75 is a good middle ground, Meehan says.
“On the one hand, we all know people who have stayed on a job or a project longer than they should have, but on the other, we also know people who have given up on jobs or projects before they should have.”
By instituting a cutoff, Meehan says you ensure that someone won’t overstay and make it easier to plan for succession. However, by not limiting terms to 10 or 15 years, you create some stability for the court.
“The expertise and institutional memory only grows over time and it is very valuable to a court as consequential as the Supreme Court,” Matthen says. “It permits the judge literally to take a very long view of events.”
What does become clear when the job lasts until your death is the need for a thorough vetting process, Gilbert says, and in the MeToo era, we shouldn’t expect Kavanaugh to be a one-off.
“This is going to happen a lot more often when people are put up for powerful positions and their names are made public.”
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