Is Life Tenure Too Long?

Tony Mauro has an interesting op-ed in USA Today wondering whether life tenure for federal judges still makes sense.

Appointing justices is one of the most important and prized duties a president has. But appointments take place only when a justice departs; for the past 10 years, no one has. Bill Clinton’s second term, and President George W. Bush’s first term, passed without any vacancies. Not too long ago, much to his regret, Jimmy Carter’s only term as president came and went without any justices leaving.

The reason is clear. Justices, like everyone else, are living longer. That makes life tenure a far weightier proposition than when the framers included it in the Constitution. The average age of today’s justices is 70. The justices who have left the court in the past 35 years served an average of 25 years before retiring. By contrast, the justices who departed in the early years of the republic served an average of eight years.

To a growing number of legal scholars, the trend toward longer-serving justices has resulted in an increasingly unaccountable Supreme Court. Protection from political pressure is great, these scholars say, but at a certain point voters should be able to effect change on their highest court. Bush, for example, campaigned and won in part on a promise to appoint “non-activist” justices. Whatever that term means, Bush can’t deliver on the promise if no Supreme Court vacancies occur. Democrats, of course, would think that’s a good thing. But their turn to want change on the Supreme Court will come someday– and may be thwarted, too, by infrequent vacancies.

“Serving 25 years or more is too long in a democracy,” says Steven Calabresi of Northwestern University. Law professors Roger Cramton of Cornell and Paul Carrington of Duke also point out that none of the constitutions that have been written for nations worldwide in the past 150 years has given life tenure to top judges. Another argument they make is that supersize life tenure has raised the stakes of each appointment and made Senate confirmation more contentious.

The argument is largely academic, in that life tenure is enshrined in the Constitution and it’s very unlikely that enough support could be mustered to get through the cumbersome amendment process. Certainly, though, if we were writing the Constitution today, we would give judges limited terms of office.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Bithead says:

    I suppose we would at that, James, but I wonder about the experience brought to the table by older judges. I suppose that advantage to be roughly offset by gettting a liberal lockstepper in there for 40 years.

  2. denise says:

    I also think it’s one of the things in our Constitution that works fine as long as politicians are acting in good faith.

    Presidents shouldn’t appoint 45-year-olds to the Supreme Court. Congress shouldn’t make the confirmation process as painful as it is. Both of these things feed the problem of extended tenure.