The case for judicial term limits

The deal that pulled the Senate back from the brink of a shootout over judicial nominations this week didn't really settle anything. Democrats retain the right to filibuster future nominees "under extraordinary circumstances" -- a phrase it is left to them to define. Republicans can still go "nuclear" -- change the Senate rules to block a filibuster of judicial nominations -- if they decide the Democrats are acting in "bad faith." Odds are the deal will collapse as soon as the next vacancy opens up on the Supreme Court. Assuming President Bush sends up a nominee whose ideological profile matches those of the sitting justices he says are his favorites -- conservatives Antonin Scalia and Clarence Thomas -- Democrats and Republicans will square off and the Senate will be back at the OK Corral.

And, really, how could it be otherwise? The Supreme Court has become an immensely powerful institution, one that sets national policy on a host of contentious issues from abortion to race to property rights. Is prayer permissible at a high school commencement? The Supreme Court decides. Can Congress ban political ads that mention candidates by name? Ask the Supreme Court. May a state execute a 17-year-old murderer? Prohibit flag-burning? Authorize medical marijuana? It's up to the Supreme Court.

Alexander Hamilton described the judiciary as the ''least dangerous branch," since it had no authority to appropriate funds and no way to enforce its decisions. But federal courts today exercise powers the Framers never gave them. They overturn laws passed by legislators, constitutionalize rights not enumerated in the Constitution, even determine the outcome of a presidential election. And if that doesn't make them potent enough, federal judges hold their jobs for life. They are unelected, unaccountable -- and enormously influential. Is it any wonder that judicial appointments are fought over so fiercely? So much is riding on the outcome.

Ultimately, the only way to reduce the acrimony is to make the judges less powerful. That could be accomplished by eliminating judicial review or enacting limits on the courts' jurisdiction. But there is an easier and more realistic approach: Do away with lifetime tenure.

When the Constitution's authors established a judiciary with unlimited terms, adult life expectancy in the United States was around 40 -- half of what it is today. Between 1789 and 1970, Supreme Court justices served an average of just over 15 years and retired at 65 1/2. Since 1970, justices have stayed on the court for an average of 25.5 years, and their age at retirement has climbed to nearly 79. That can hardly be what the Framers envisioned.

No president can hold power for more than eight years, but the most junior member of the current court -- Stephen Breyer -- has already been there for 11 years. Two others, John Paul Stevens and Chief Justice William Rehnquist, have been on the court for more than 30 years.

First and most obviously, lifetime tenure vastly increases the stakes in filling each Supreme Court (and Court of Appeals) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing weren't likely to persist for decades. Second, high court justices are tempted by the current arrangement to time their resignations for political reasons. Liberal judges have an incentive to stay on the bench until Democrats control the White House and/or the Senate, while conservatives wait until Republicans are in charge.

Third, as law professors Akhil Reed Amar of Yale and Steven Calabresi of Northwestern wrote in 2002, ''life tenure encourages presidents to nominate young candidates with minimal paper trails and maximal potential to shape the future" -- by passing up more experienced individuals whose resumes might trigger an ideological assault. And fourth, with justices staying on the court longer than ever, the judiciary is deprived of regular infusions of new blood. Result: a decrease in intellectual vigor and awareness of contemporary culture.

The argument in favor of life tenure for federal judges is that it strengthens them against political attack and outside influence, making it easier to render unpopular decisions without fear. ''The Constitution protects judicial independence not to benefit judges," Rehnquist wrote in his 2004 year-end report on the federal judiciary, ''but to promote the rule of law: judges are expected to administer the law fairly, without regard to public reaction."

But life tenure can be replaced with fixed judicial terms without weakening the autonomy of the federal judiciary. No one questions the independence of the governors of the Federal Reserve, who like judges are appointed by the president and confirmed by the Senate but who are limited to 14-year terms. Likewise the comptroller general -- the federal ''watchdog" -- whose term lasts 15 years.

Why not a similar arrangement for high-ranking federal judges? Amending the Constitution is never easy, but the situation cries out for reform. Senators shouldn't have to threaten each other with ''nuclear" attack in order to bring judicial nominees to a vote. If there were less at stake -- if Supreme Court and appeals court judges no longer served for life -- they would no longer feel the need to do so.

"Alexander Hamilton described the judiciary as the ''least dangerous branch," since it had no authority to appropriate funds and no way to enforce its decisions. But federal courts today exercise powers the Framers never gave them."

THE PROBLEM --- in conjunction with the spinelessness over the years of the legislative (not executive) branch that does not impeach them for this crime against the Constitution. The author ought to have mentioned that Hamilton was making this statement in arguing with those who foresaw this, and rightly feared the judiciary above all other branches.

Jacoby's suggestion is excellent - but I'm not sure quite workable by simply imposing a say, 15-yr limit. It might be wise to have some type of intermediate review where someone,( The People??? ) could cancel their term after 8 years or so by a 2/3 vote against or something like that. The "no filibuster" of appointments has to be clarified, too, to lower the vitriol of the Senate, too.

Good article.

I propose that we elect judges to the Supreme Court of the United States. Each party nominates 2 judges for each post as they are emptied. Elections held in November. President is allowed to fill each empty slot until the election. No filibuster is allowed or needed.
Each position is a life time post as is the case now.

But federal courts today exercise powers the Framers never gave them.

the Framers never gave the courts those powers because they didn't have the history of judicial activism we have today to work with.

If the Framers DID have that history to go by, instead of just gut instinct, they would never have agreed to one Supreme Court over all other courts in the first place.

So, now we have what the Framers didn't have - a judicial history of activism starting with Marbury. That history confirms Lord Acton's premise that" "power corrupts, and absolute power corrupts absolutely".

Since the Congress has never done its duty in keeping a check on the judiciary it falls to the people to bypass the Congress with limits on judge's terms in office.

Term limits on the judiciary are the only way to assure that we remain a free people.

We have reached the question of term limits on the Judiciary because the Legislature has refused to live up to its duties, and an Executive that has chosen not to assert theirs.

Alexander Hamilton was precisely right about the Judiciary--then.

Actually, he's still right, but the other two branches lack the will.

The Legislature has it in their grasp to limit the authority of the courts. The Executive is needed to enforce the decisions (one need look no further than the Supreme Court's decision saying it was wrong for unions to force union members to pay dues that would be used for political purposes--but the previous Administration refused to enforce it, stating so publicly!).

Courts can be limited through the power of the purse also. Courts simply don't get the funds to pull on large legal staffs to research bizarre documents to find unstated Constitutional rights.

All these powers are available today. No one wants to, so the sop of term limits is thrown out.

It's a bad idea, because it lets the folks off the hook who should be doing their job.

Quick--term limits before I actually have work.

I'm surprised Jacoby didn't include a fifth reason -- one that might be more compelling than the other four.

In light of the revelations contained in Harry Blackmun's personal papers, there is a strong possibility that in recent decades a number of these Supreme Court justices served their later years in a condition that bordered on senile. I've read the same about Thurgood Marshall, who apparently had his staff write all of his opinions and spent most of his time watching cartoons in his office.

There needs to be a maxim among conservatives: Don't go for some wild, radical solution when a more basic solution will accomplish the same job. Instead of playing around with the foundations of our constitutional system, all Congress needs to do in order to restrain activist judges is take away their appellate jurisdiction until they learn how to read the Constitution right. No constitutional amendments necessary, no 2/3 majority in both houses with 3/4 of the states - just a simple majority in both houses followed by the President's signature.

Why do people insist on getting so exotic with their solutions? It's as though there's a competition to see who can outdo the other.

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