Life Tenure for Federal Judges: Should It Be Abolished?

By EDWARD LAZARUS

Thursday, Dec. 09, 2004

In a recent poll, a majority of Americans said they favored mandatory retirement for judges at age 65. That is a very bad idea.

The wisdom that comes only from experience is a big part of being a good judge. Many judges, perhaps even most, are right in their prime at 65. It would be a shame to force them off the bench strictly on the basis of age (and not a very old age at that).

Still, this majority of the American public may be onto something. (See Matthew Segal's column today for this site, however, for a caveat as to how such polls ought to be interpreted.) People have a sense that too many judges are staying on the bench for too long - indeed, for years after their best work is behind them. And I, for one, cannot say they are wrong.

All told, life tenure for federal judges may well have become a detriment to American political life. It is time to give serious thought to a constitutional amendment limiting judicial tenure to a non-renewable fixed term of years.

The Core Reason For Federal Judges' Life Tenure: Independence from Politics

Without question, life tenure for federal judges serves an extraordinarily important purpose: It shields judges from the political pressure that comes with periodic accountability to an electorate. Unlike many state judges, federal judges do not have to worry about raising money for election campaigns or displeasing voting constituencies with unpopular (but legally correct) rulings.

A vital function of federal judges is to protect against a hyper-democratic "tyranny of the majority" in which minority rights are routinely subverted to the will of the majority. Many components of the Bill of Rights that judges are routinely called upon to enforce - the right to free speech, the right to practice one's religion, the right to due process of law (to name just a few) - were designed to protect the rights of insular and sometimes unpopular minorities.

Being a conscientious federal judge is a difficult job under the best of circumstances. Even with life tenure, judges are not completely immune from political pressure. They remain members of their respective communities, and for this reason, they remain subject to all sorts of attendant social pressures. It's hard to be the judge who lets the neo-Nazis march in Skokie, or who lets the accused rapist walk free because the police violated his constitutional rights.

Imagine how much harder the job would be if -- as is, regrettably, the case with some state court judges -- a federal judge's professional livelihood depended on securing re-election directly, or on the hope of reappointment by an elected official. Judges like job security just as much as the next person. It's only because judges don't have to worry about currying political favor that they have a fighting chance to carry out one of the judiciary's most significant roles.

Independence Must Be Carefully Protected, But Life Tenure Is Unnecessary

In sum, then, it's important to protecting judge from political pressure and electoral accountability - and life tenure is one way of doing that. But importantly, this ideal does not require life tenure.

Appointment without possibility of renewal for a fixed term of years would achieve the same goal. So would appointment until a mandatory retirement age (unwise as this might be). In both scenarios, judges still would not have to run for office, seek reappointment, or otherwise worry about political popularity.

So the real question is not whether life tenure is essential to judicial independence, but whether other judicial tenure rules could equally preserve judicial independence while better serving other goals. And to this question, the answer may well be yes.

Comparing Judicial Tenure Rules: Can We Solve The Problems with Life Tenure?

Life tenure creates at least three problems: First, it allows bad judges to remain on the bench indefinitely (except in the extraordinarily rare case of impeachment). Second, life tenure allows all judges, including some very good ones, to remain on the bench when they are no longer doing their best work (or even close to their best work). Third, and finally, life tenure allows judges to remain on the bench, even as their productivity and effectiveness dwindle, while they wait for the election of an ideologically compatible President who will nominate an ideologically compatible successor.

Cutting short life tenure is certainly not a perfect solution. Yes, it would cut short the tenure of bad judges. But it would also cut short the tenure of very good judges.

Take, for example, a rule limiting federal judges to 20 years on the bench. A twenty year term allows a judge to complete a very substantial body of judicial work. Yet such a term would have the vast majority of federal judges retiring in their 60s or 70s. And it would be easy to compile a long list of terrific federal judges who were (and are) still highly productive and making a significant impact on the law long after the 20-year mark.

But this downside to a 20-year limit has to be balanced against some substantial benefits. At some point, a lot of even very good judges get too set in their ways and, as they get older, delegate too much authority to their law clerk assistants (though, of course, younger judges sometimes do this too). A 20-year term limit would guarantee greater turnover in the federal judiciary. And that turnover would, as a cumulative matter, bring more energy and a greater flow of fresh ideas onto the bench.

Should Judicial Tenure Be Shorter than Life? It's a Close Call.

Of course, I recognize that amending the Constitution to create a youth movement in the judicial branch would be extreme, to say the least. But in my mind, the political ramifications of life tenure make the issue a closer call.

Our system for nominating and confirming federal judges is in crisis. One reason it is in crisis is that the stakes are so very, very high: Every judicial vacancy translates into a lifetime appointment. Thus, the party in power can try to project its political legacy far into the future by naming young ideologues to the federal bench, knowing that they will keep their influence for 30 or even 40 years down the road.

A 20-year term limit would lower the stakes - again, through the mechanism of increasing turnover. In addition, it would reduce the incentive to select younger and younger nominees - some of whom lack the experience and accumulated wisdom that should be the hallmark of judicial appointees. And it would prevent judges from staying on the bench too long just to wait out another Administration in the hope that a likeminded President will be elected the next time around.

The Problems with Life Tenure Are Intensified At the Supreme Court Level

The problem at the Supreme Court level is especially acute. It's no secret that most, if not all, of the Justices want their successors named by an ideologically compatible President.

For instance, it was widely rumored that Chief Justice Rehnquist would have retired but for Bill Clinton's winning and holding the presidency. Certainly, Justices William Brennan and Thurgood Marshall hoped to outlast a string of Republican presidents, though they could not manage it.

As matters now stand, there has not been a court vacancy for ten years. Any vacancy now will be a cataclysmic event - both because the nation and the Court itself are so closely yet deeply divided, and because, with life-tenure, the justices now routinely serve for 25 to 30 years.

Control over the appointment process to the federal judiciary is one of the most important powers any Administration has. Yet, as an electorate, we cast our votes having no idea which judges on which courts a new Administration will get to replace. Instead, we are left to play an absurd and unhelpful guessing game about which justices might step down in what administration.

A Modest Proposal: Staggered Eighteen-Year Terms with No Reappointment

So let me throw out a modest proposal for the Supreme Court: We should amend the Constitution to limit justices to a single 18-year term. The start of that term for each of the nine justices should be staggered two years apart, so that two justices will be retired from the Court during every presidential term. (To maintain this staggering, the replacement for a justice serving less than 18 years would only serve out the remaining years on that term).

This proposal would rejuvenate the Court on a regular basis. It would prevent justices from hanging on for political reasons. It would regularize the replacement process so that voters would know the judicial stakes (two pre-identified justices who would be replaced in the next Term) in every presidential election. And it would somewhat temper the importance of each individual appointment, because none of the appointees could stay on the Court indefinitely.

Truth be told, I have not yet even convinced myself that the pros of this idea outweigh the cons. But I am convinced that it's time to start a debate about what has always been a sacred cow: federal judges' life tenure.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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