Life Tenure

Mark Kleiman compares Sam Brownback's view that we should have "term limits for judges" to Alberto Gonzalez's belief that the constitution's guarantee of habeas corpus doesn't guarantee anyone in particular that right as examples of conservatives "shredding the constitution."

I think that's grossly unfair. Brownback is proposing changing a procedural element of our constitution. He's not asserting that the president has some general right to fire judges he thinks have been on the bench for too long. He's not even proposing to alter any of the rights-granting portions of the constitution -- he's proposing a procedural change. And not, I might add, a silly procedural change. Life tenure for federal judges seems like a bad idea to me -- something that probably made more sense during the Founding generation when people didn't live as long. But even if you think Brownback's proposed modification is a bad idea, there's clearly a world of difference between wanting to alter the structure of the constitution through legitimate means, and Bush/Gonzalez-style run-amok illegality.

Comments

People, especially men, did live pretty much as long. Once you made it to twenty, the odds were pretty good that you'd make your three score and ten.

Infant mortality and childhood disease is what drives down the life expectancy number. Given that Franklin was part of the group making these decisions, it would have been palpable that lifetime tenure would result in some very old men in judgeships.

Posted by jayackroyd | January 21, 2007 12:01 PM

It's clear that judges in lots of other democratic states don't have life tenure and it works just fine.

Posted by otto | January 21, 2007 12:08 PM

However, the reason behind lifetime tenure from judges was to insulate them from public opinion, so that they could reach the legal and just result without fear of reprisal. If you want to limit that tenure, it should probably be a long time, which would in most cases result in similar results - judges being on the bench for far longer than any of us really want.

Posted by Trickster Paean | January 21, 2007 12:28 PM

Eliminating life tenure is a terrible idea in a post-Bush v. Gore world. The function of life tenure is to prevent massive structural changes to our government from occuring unless it is supported by the electoral college over several decades. No one President serves long enough to appoint a majority of the Supreme Court (with a few very rare exceptions), this means that, while constitutional revolutions can occur, they require several Presidents in a row appointing similarily minded judges. Take away life tenure, and a single President (or more likely, a single President and their successor) could easily control a majority, if not the entirety, of the Supreme Court.

Without life tenure, decisions like Hamdan would be impossible, while decisions like Bush v. Gore would be commonplace.

Posted by Ian | January 21, 2007 12:31 PM

What does a typical life tenure term look like? Would a non-renewable twenty-year term have any real impact? Or would it need to be shorter to matter?

Posted by jhupp | January 21, 2007 12:40 PM

My main concern about eliminating lifetime tenure for judges is the possibility that we might see the same kind of revolving door by which legislators go into the lobbying business. Sure, judges can retire work elsewhere now, but I imagine the external pressures might be a bit greater, say, in the last year of a judge's final term.

Not to mention economic considerations. Tenure has value. It might be the case that eliminating tenure would not reduce the pool of high-quality candidates, but we'd have to admit that the overall package would be less valuable without a significant bump in salary. (At least, this is one perspective from someone with academic tenure.)

Posted by RSA | January 21, 2007 12:43 PM

FDR had appointed a majority of the court by 1940 (that is to say, the end of his second term), and all those appointments had been made in a single term - Black, Reed, Frankfurter, Douglas, and Murphy were all appointed between 1937 and 1940. By the time of his death, FDR had appointed the entire court. Eisenhower also appointed five justices. Nixon appointed four, and would've appointed five if either Douglas had retired when he became senile, or he hadn't gotten kicked out over Watergate.

Posted by John | January 21, 2007 12:48 PM

As to the substance: do you really want every judge to have to consider, every time he decides a case, what its impact will be on his post-judicial career prospects?

I agree that changing the Constitution doesn't compare to violating the Constitution. But neither one counts as "conservative," if that word means "reluctant to change established custom."

Posted by Mark Kleiman | January 21, 2007 12:49 PM

A bunch of law professors have recently made what seems like a pretty reasonable proposal: Appoint SCOTUS justices to a single 18-year term. One result of this would be that you'd have a SCOTUS nomination every two years, so that presidents would get two appointments per term, unlike the present system in which how many SCOTUS appointments a president gets is highly variable and essentially a product of chance. Another aspect of the proposal is that after the term was up, justices would go on senior status, and would only vote in cases in which one or more of the regular nine justices recused themselves, or were otherwise incapacitated.

This proposal would also spare us the costs associated with the increasingly common spectacle of justices hanging on to their sinecures into extreme old age.

Posted by Paul | January 21, 2007 1:36 PM

What Paul said. Having clerked for a federal judge well past his/her (anonymity is important here) mental prime, and having known that there were at least 5 others in similar stages of senile dementia in the same building, it seems clear that lifetime tenure is an overrated concept. 18 year single terms would serve the same purpose in terms of independence and continuity (although someone would need to figure out what to do about elevation - does making it to the next level get you another 18 years? Then we start to have some political favor-currying problems). And it would end the current practice of looking for the youngest (and thus most inexperienced) jurists. We're gonna be stuck with Clarence Thomas and John Roberts for a long time. If a president knew a nominee would only be there for 18 years, he (or she) might not look for a 35-40 year old.

Posted by Adam | January 21, 2007 1:54 PM

As to the substance: do you really want every judge to have to consider, every time he decides a case, what its impact will be on his post-judicial career prospects?

This concern could be substantially mitigated by an especially generous pension scheme, perhaps accompanied by a tightening of the rules concerning post-judicial employment. Moreover, if you set the term limit for a decent length (say, fifteen years) the vast majority of judges will be relatively old when they leave. I mean, not that many 35 year olds makes it to the federal bench.

I basically like the idea of judicial term limtits, but I think they're most suitable for the Supreme Court, and I'd be content with imposing them only at this level. The reason I like them is that, under our current system, so freakin' much is at stake when one of the justices retires, it really kinda perverts our politics by turning them into Texas death matches. Lifetime tenure also, I should add, tips the balance of power a bit more toward the judiciary than I think is wise.

Posted by Jasper | January 21, 2007 2:03 PM

Just to echo jayackroyd's point, if you reached adulthood in the late 18th century and were fortunate enough to perform the equivalent of white collar work, you could hope for a pretty lengthy life. For example, Chief Justice Marshall served for some 35 years until his death at nearly age 80.

Posted by wolfstar | January 21, 2007 2:06 PM

Lots of European countries have term limited or age-limited (not the same thing, I grant you) supreme or constitutional court judges. None of the bad effects discussed here have followed.

Posted by otto | January 21, 2007 2:06 PM

The idea that a retiring SCOTUS Judge would have trouble finding work is laughable. Their CLERKS are "set for life". Clearly, the vast majority of judges would be as well. The handful of exceptions probably would deserve it.

Second - I think Gonzelez's comments are being unfairly critiqued. Numerous SCOTUS precedents have held that the Constitution itself does not grant the right to habeas corpus, see, e.g. Ex Parte Bollman. Gonzalez was arguably right.

Now, the question is what counts as suspension. Scalia (a current Justice) has this absurd notion that Congress can eliminate habeas forever, they just can't waive it for a period of time. I find that uncompelling. In dicta, a majority of the court suggested that the suspension clause has to at least protect what was protected in 1789. See St. Cyr.

Now, Gonzalez was right in his comments on habeas. But, I personally think the other positions of the right-wing jurisprudence are wrong - but those are in no way limited to Gonzalez. They were and are shared by Rhenquist, Thomas, Scalia, etc. Basically, it seems like they want to read this clause out of the Constitution, and I think that arguably should be an impeachable belief. Unfortunately, it currently has lots of supporters - on the court, in academia, and in politics.

Posted by MDtoMN | January 21, 2007 3:05 PM

Re: something that probably made more sense during the Founding generation when people didn't live as long.

Upper class folks back in the 1700s lived almost as long as they do now, assuming they survived childhood. Check out the ages at which Washington, Jefferson, Adams and Franklin shuffled off our mortal coil. In fact, low life expectancy figures from the past are deceiving in that they are mainly due to horrendous childhood mortality rates (which approached or exceeded 50% in most eras.) People who made it to their 20s (which often meant they had superior immune systems) could generally hope for the "three score and ten" that even the ancients recognized as the natural span of human life.

Posted by Jonf | January 21, 2007 3:33 PM

Term limits for judges?
I think it would be better if there were "ideological limits", i.e. both sides in the culture wars would be able to veto each other's ideological SCOTUS nominees. That way, it wouldn't really matter whether the President is a conservative Republican or liberal Democrat -- any candidate who survives the process automatically becomes a Souter or a Day O'Connor.
---
I know having a consistent "judicial philosophy" is considered very important among cultural conservatives in particular, but it seems to me the Supreme Court would be more impartial if its members were non-ideological pragmatic folks. At least that is how the system seems to work here in Europe, although I suppose we do not have the sharp cultural conflict (social conservatism vs. secular liberalism) that you do.

MARCU$

Posted by MARCU$ | January 21, 2007 3:34 PM

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

Unless one takes the bizarre notion that to an elimination is not a suspension, Scalia is nuts. The text presumes that habeas corpus is essential to the fabric of a function free society.

Posted by Jeffrey Davis | January 21, 2007 4:04 PM

Like Paul and Adam, above, I'm for judicial term limits, although I'd make it on the order of 25 years for a Supreme Court Justice. Like they said, it would serve two goals: it would kill the motivation for appointing extremely young but ideologically correct Justices (e.g. Clarence Thomas), and it would limit the extent to which Justices could hang on to their robes right up to death's door, or potentially into senility.

A 25 year term for Supreme Court Justices would void Kleiman's concern about post-judicial prospects. Possibly the term limit should be somewhat higher for District Court and Circuit Court judges, who tend to be appointed at younger ages. Could be 35 years for District and 30 for Circuit Court judges.

FWIW, such an arrangement (regardless of term length) would NOT give each President approximately the same number of opportunities to nominate Justices. It would not be like the Senate, where if the occupant of an office retires early, his/her replacement merely fills out the remainder of the term. If such a system were in effect today, there would be nothing to stop all nine Justices from retiring tomorrow, giving Bush all nine picks, and preventing the next two or more Presidents from having any picks at all. But I have no problem with that.

Posted by RT | January 21, 2007 4:09 PM

"I know having a consistent "judicial philosophy" is considered very important among cultural conservatives in particular, but it seems to me the Supreme Court would be more impartial if its members were non-ideological pragmatic folks."

I think you give them too much credit here. There is no consistency in their philosophy - it's entirely pragmatic and outcome based. For instance, the "originalists" argue that the 14th Amendment bans any programs oriented towards improving the conditions of blacks specifically, but the Congress that passed the 14th supported numerous such programs. They think that reading a right to autonomy over decisions about one's body into "due process" is "judicial activism", but they have no problem finding an implicit limit on punitive damages in the same clause. They argue that they stick to the text, but somehow the 11th Amendment is read to grant States sovereign immunity, despite the fact that a sovereign immunity Amendment was offered and rejected and instead the 11th seems to simply strip one basis for jurisdiction in Federal Courts.

They are very pragmatic. They seek to achieve the unpopular parts of the Conservative agenda through the Courts.

Posted by MDtoMN | January 21, 2007 4:24 PM

Here in Canada there is a mandatory retirement age for judges at 75.

Posted by 3pointshooter | January 21, 2007 9:52 PM

"suspension" and "elimination" have different meanings, and thus one can argue that they are different.

It's worth highlighting - this is one of the problems with both textualism and originalism. The text simply does involve a certain vagueness and does not deal with every situation. History is highly malleable, allowing for multiple interpretations. So, assertions that one is a textualist or an originalist IMPLY a certin objectivity that is impossible.

Similarly, assertions that one is a sola scriptura Christian concerned solely with the direct truth of the Bible runs into these problems.

The result is that the interpreters solve these problems based on their own policy judgments, without articulation. This result causes the doctrine to be confused, allows a certain amount of hubris (always a risk given the power residing in the SCOTUS), and fails on its own terms.

Posted by MDtoMN | January 22, 2007 11:35 AM