Monday, February 13, 2006

Term limits for appointed judges? [updated]

[First posted: 16 November 2004. Updated: 7 March 2006, 13 May 2010.] UPDATE: More interest sparked by President Obama's nomination of Elena Kagan. See here, here, here and here. UPDATE: Some recent resurgence of interest in this topic: see Teitelbaum, Joshua C, "Age, Tenure and Productivity of the US Supreme Court: Are Term Limits Necessary?" Florida State University Law Review (forthcoming).
Abstract: This paper examines the relationship between the productivity of the US Supreme Court and the age and tenure of the Supreme Court Justices. The motivation for this paper is the Supreme Court Renewal Act of 2005 (SCRA) and other recent proposals to impose term limits for Supreme Court Justices. The authors of the SCRA and others suggest that term limits are necessary because, inter alia, increased longevity and terms of service of the Justices has resulted in a decline in the productivity of the Court as measured by the number of cases accepted for review and the number of opinions issued per term. On the whole, the empirical findings of this paper do not provide clear support for this assertion.
Czarnezki, Jason J, "A Call for Change: Improving Judicial Selection Methods," 89 Marquette Law Review (2005) 169-78.
Abstract: Empirical data show that, despite the significant electoral success of state court judges, elections still impact judicial decision-making, and elected judges are less consistent in their voting patterns than appointed judges. In addition, if interest in state judicial elections continues to wane and these contests are not robust, states no longer even benefits from the participatory advantages of an elective system. Using the State of Wisconsin as an example, this Article suggests that Wisconsin and other state legislatures, with the support of bar associations and academics, should revisit the historical underpinnings of judicial elections, and consider both whether electing judges conforms with the historical goals of having an elected judiciary and whether the available empirical data support the belief that elected judges can be systematically consistent and independent in the decision-making process.
US blogger Michael Williams has a post here (link thanks to Clayton Cramer) advocating term limits for US federal judges:
It's time to consider amending the Constitution to impose limited terms on federal judges, all the way to the top at the Supreme Court. The terms should be nice and long, say 15 years, but considerably shorter than the lifetime tenure now enjoyed by our judicial aristocracy. The idea that whomever President Bush appoints during his second term could still be making law for my grandchildren is ridiculous. Maybe in an ideal world judges-for-life work, but in reality they're no better than presidents-for-life. The idea behind life terms is that the judiciary shouldn't be politicised, but take a look around -- it's a little too late for that. I don't think federal judges should be popularly elected (as many state judges are), but I don't think we should have to impeach them be rid of them. Limit judges to one 15-year term, and then let them ply a useful trade in the public sector.
[Here's my thoughts, which I posted also at Michael's blog.] This idea's been supported by both Michael Parenti, of the Left (in Democracy For the Few, St Martins, 1988, p 315) and Gregg Easterbrook, of the centre-Right (in "Geritol Justice: Is the Supreme Court Senile?", The New Republic 19-26 August 1991, pp 17-19):
When the Constitutional Convention of 1787 conferred on Supreme Court justices a lifetime tenure almost impossible to revoke, life membership did not mean what it means today… 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. Three members of the current Court have been seated more than two decades, notably longer than what the Constitution now considers to be the limit for a President to hold office... Suppose each Supreme Court seating lasted only ten years... A term limit would… end the psychological and political pressure on justices to hand on long after their mental acuity falters... Regular succession of seats would provide many more opportunities to appoint women and members of minority groups… [and] would end the special fear of appointing relatively young Justices, since they would not be mistakes who hang on decade after decade… Non-geriatric ex-Supremes would be in great demand as law partners, and thus would have no financial needs of concern to taxpayers. (pp 17-18).
In Australia, we have a compromise position between fixed terms and (literal) lifetime tenure: a constitutional retirement age. A 1977 referendum amended the Federal Constitution to set this age at 70 for High Court justices and to let Parliament fix a [non-retrospective] lower age for inferior Federal Court judges. Given that almost any jurist eminent enough to be appointed to the national supreme court will be aged at least 50-55, this sets a de facto term of 15-20 years. Before 1977, many Justices served into their eighties, and one spent four decades on the High Court! Most States have a similar provision, setting either 70 or 72. (I note that Canadian Senators must retire at 75). A curious anomaly arose last week when a Queensland judge, Brian Boulton, was required to retire on his 70th birthday as required by that State's law; he immediately accepted a judicial appointment across the State line in New South Wales, where the age is 72! Our former Chief Justice, Sir Anthony Mason, retired from the High Court at 70 in 1995, but has served since by invitation on the supreme court of Fiji. It may well seem a waste to bump active and keen-minded jurists off our own High Court, when they're still quite capable on serving on other nations'. But balanced against the "false negative" of, say, a near-senile Thurgood Marshall who can do no more than "hang on until the Democrats get back in the White House" and let his clerks write all his opinions, this "false positive" is probably the lesser evil. UPDATE: Dahlia Lithwick devastatingly refutes the idea of a mandatory judicial retirement age:
... Recent polls show that the majority of the American public supports the idea of mandatory retirement for judges with life tenure. I disagree. "Lifetime appointments" should mean just that...
-- "Ain't Nobody's Business If I Do: Does William Rehnquist have a right to keep his medical condition a secret?", (15 December 2004) Apart from the minor quibble that US federal judges do not in fact presently enjoy "lifetime" appointment, one cannot argue with such watertight logic. Four legs = good, two legs = bad. Whosever hath the slogan, hath won the argument. It's like arguing with a supporter of "three strikes" laws: "A mandatory lifetime jail sentence, imposed after some arbitrary number of prior convictions, may often be a grossly disproportionate penalty in particular circumstances". "But three strikes is out!" "Oh, yeah, you're right, I forgot. Three strikes is out." After all, requiring every 80-year-old judge to retire is only a short step from allowing President Nixon to dismiss Judge John Sirica at will.