more articles on the proposed 15 year term for federal judges. Norm Ornstein makes the point that a limited term might help defuse the mounting controversies over each new Supreme Court appointment, since currently these amount to a lifetime appointment to a seven member House of Lords with the power to shake the nation to its core. A fifteen year term would reduce the importance of each appointment. (http://www.reclaimdemocracy.org/articles_2004/life_tenure_judges.html) Rethinking Life Tenure for Judges Less-than life terms could help de-escalate nomination battles By Norman Ornstein First published by the American Enterprise Institute, November 2004 Could there be a more bitter stalemate in Washington right now than the Senate's standoff over judicial nominations? Democrats maintain that President Bush intends to use these lifetime appointments to create a conservative legacy that will outlast his administration by several decades. Republicans say that the Democrats' use of the filibuster to block Bush's nominees is minority rule gone wild and a finger in the eye of voters, who elected a GOP president and Senate. As matters now stand, nothing appears likely to break the deadlock. Senate Republicans have one weapon -- what Majority Leader Bill Frist and his colleagues have called the "nuclear option," because it would blow up the current rules requiring a 60-vote "supermajority" to end a filibuster. Essentially, Vice President Cheney would declare, in his role as president of the Senate, that judicial nominations can't be filibustered -- and then Senate Republicans would vote by simple majority to uphold his ruling. The Democrats would certainly challenge this tactic, saying that such rulings are themselves subject to Senate debate and therefore subject to filibuster and the 60-vote hurdle. New York Democratic Sen. Charles Schumer warned, "To implement the nuclear option would make the last Congress look like a bipartisan tea party." There is a better way to prevent this partisan warfare from going nuclear: Amend the Constitution to eliminate lifetime tenure in favor of single 15-year terms, at least for Supreme Court justices and federal appeals court judges. Whoa, you say. Lifetime appointments insulate the judicial branch from political influence, don't they? Not anymore. Is there anything more political than the Senate's unceasing battles over these nominations? Meanwhile, the nominees themselves have become politicized by the battles -- Supreme Court Justice Clarence Thomas will always remain bitter over how the Senate treated him during his confirmation hearings. It's been 17 years since Senate Democrats blocked the nomination of Robert Bork to the Supreme Court, and the ideological wars over the judiciary began in earnest. If the Senate can't figure out how to reach a truce in its battles over these all-important jobs, maybe the best solution is to make the jobs not quite so important. A 15-year term would still provide insulation from political pressure; that tenure is seven years longer than any president can serve. It would allow plenty of time for a judge or justice to make a substantial contribution while diluting the efforts of any president to project his views onto future generations. It has worked admirably well in other jobs that require independence to be effective -- for example, the Comptroller General of the United States. Lifetime tenure of judges is taken for granted and rarely discussed. That is understandable. It has been with us since the earliest days of the republic, when the framers embedded the concept in Article III, Section 1 of the Constitution. They viewed lifetime appointments not only as a necessary way to insulate judges from the other branches, but also as protection against undue influence from outside interests. They also saw a lifetime guaranteed income as a financial incentive that would attract and retain the most skilled and talented lawyers. The Federalist Papers provide a window onto their thinking. In Federalist 78, Alexander Hamilton eloquently argues that judges should remain in office as long as they exhibit "good behavior." In 1788, a year before the Constitution was adopted, he wrote: "The standard of good behavior . . . is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws." The logic was impeccable -- at least for the 18th and 19th centuries. Now, though, lifetime tenure has serious drawbacks. It has created a powerful temptation to presidents to pick young ideologues, skewing the balance on the bench and leveraging a president's power for decades thereafter. And lifetime tenure ratchets up the stakes of each appointment, giving opposition parties more incentive to block as many presidential nominees as possible, whatever their ideology, to leave more lifetime slots for a future president of their own party. Moreover, lifetime tenure in the 21st century is no longer a financial incentive, but a financial drawback. Federal judicial salaries are currently barely more than a newly minted lawyer, just out of school, can earn at a major law firm. A 15-year term would limit the financial disincentive for serving on the courts -- for a younger person, there would still be plenty of time to build the nest egg to provide for a family and retirement; for an older person, it would become the final chapter of a career. Presidents would have a much wider array of talent to choose from if people in their sixties could be seriously considered for top judicial posts; many are now largely discounted because of the alternative lure of choosing younger nominees who can serve much longer. If these 15-year terms were staggered over time for Supreme Court positions, it would take away the variability that allows some presidents to fill several vacancies in one term, while other occupants of the Oval Office can go two terms without filling any. Presidents could have their say, but the luck of the draw or the actuaries would not be able to let them dominate policy into the next generation. It would also have another side benefit -- removing the motivation for justices to game the system, either by staying in office longer to await a compatible president, or retiring prematurely to ensure a like-minded replacement. Of course, going to 15-year terms would not eliminate rancor over nominations and, in the short term, neither side would see the change as being to their advantage. The Democrats, now facing a slew of nominations they view as ideologically unacceptable, wouldn't be terribly thrilled at the prospect of even 15 years of conservative influence. Republicans would be reluctant to give up the difference between 15 years and a lifetime. Moreover, it's hard to overestimate the resistance to changing the Constitution. But pushing for the change may be worth the effort, or at least the debate. The alternative is the nuclear option and its inevitable companion, mutually assured destruction. We have long accepted lifetime judicial appointments as a given. We shouldn't. The shift away from lifetime appointments just might bring the Senate back to a more conventional -- and constructive -- partisan conflict. Norman Ornstein is a resident scholar at the American Enterprise Institute. November 15, 2004 Limited Terms for Federal Judges 2 Michael Williams Law & Justice http://www.mwilliams.info/archives/004911.php Clayton Cramer responds to my earlier post in which I argued that we should consider amending the Constitution to institute limited terms for federal judges of, say, 15 years, rather than give them lifetime appointments. This is a very tempting position to take, at least when conservatives seem to be in political ascendancy. I have a theory, however, that lifetime appointments for federal judges has a positive effect of buffering the rate of change--and this is actually a good thing, overall. Consider what happened when FDR tried to ram through the New Deal. A bunch of federal judges, including most of the Supreme Court, were appointed by Republicans, and had a view of the government's role that is often characterized (not entirely accurately) as "strict constructionism." They hindered substantially FDR's well-intentioned by foolish attempts at making the federal government master of the economy. They hindered FDR's efforts, but they could not delay them indefinitely. Still, without these delays, I suspect that FDR and Congress might have gone quite a bit farther down the road to government control than they did. My understanding is that "strict constuctionism" was coined by Richard Nixon and William Rehnquist during the former's 1968 presidential campaign, and I don't think any of the justices opposed to FDR closely aligned with the theory. (But Mr. Cramer is the historian, not I!) Anyway, I agree that long terms for judges are useful as a check on the other branches, but it's also important to remember that people lived much shorter lives in the 18th century when the Constitution was written. Who would have guessed, then, that in 2004 we'd have a Supreme Court with an average age of 70 years and not a single resignation in over a decade? Perhaps Mr. Cramer has some knowledge of the average amount of time served (before death or resignation) by federal judges in the 18th and 19th centuries as compared to the 20th and 21st. Update: Mr. Cramer responds via email, The term strict constructionist may be that young, but the theory it promotes--that judges should only use the explicit language of the Constitution in deciding what is Constitutional--goes back much earlier than that. I used the language that I did to emphasize that many of these judges didn't strictly follow their own theories on this. Take a look here for the duration of various chief justices of the Supreme Court. Marshall served for 35 years, from 1801 to 1836. That's a long time... probably too long, I say. According to the table, for whatever it's worth, Chief Justices nominated to the Chiefship in the 18th century served an average of four years, those nominated in the 19th century served 21.8 years, and those nominated in the 20th century served 11.75 years. This doesn't count time spent as a federal judge, if any, before being made Chief Justice. Really, these averages indicate nothing, other than the known fact that I like using Excel to play with numbers. I'd be very interested in a larger data set of federal judge tenures. Update 2: I just saw the earlierly-misposted comment by Tom Round who has some excellent data, quoting The New Republic: In 1787, the adult life expectancy was less than 39 years. Today the number is nearly double that. Stays on the Court have lengthened almost exactly in sync, the first nine justices… served an average of 8.6 years, while the last nine to leave… have presided an average of 16.7 years. With the median age of the population at 32 years, the median age on the Supreme Court is now 67.
posted on 03/31/2005 9:34:33 AM PST
. Norm Ornstein makes the point that a limited term might help defuse the mounting controversies over each new Supreme Court appointment, since currently these amount to a lifetime appointment to a seven member House of Lords with the power to shake the nation to its core.
Minor correction. There are 9, not 7 justices on the SCOTUS.
posted on 03/31/2005 10:35:21 AM PST
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