It’s time to abolish life tenure

Oct. 10, 2018, 1:00 a.m.

Article III, section I of the Constitution declares that: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” Since the creation of the judiciary, this clause has been interpreted to require life tenure for federal judges, including Supreme Court justices. The philosophical underpinnings of this provision can be found at the roots of American political thought. In Federalist #78, Alexander Hamilton conceptualized the courts as “the bulwarks of a limited Constitution against legislative encroachments.” Hamilton saw the “permanent tenure of judicial offices” as essential to the healthy separation between the legislature and the judiciary, writing: “Nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

Hamilton raises an important point. Seeking reappointment, justices with fixed terms might try to curry favor with the president and Congress throughout their service on the court. By making decisions that appealed to the other branches in order to extend their careers, these justices would compromise the objectivity of their rulings. Furthermore, Hamilton believed that life tenure would help attract the most qualified individuals to the position; the young nation’s best legal minds would have no interest in “quitting a lucrative line of practice to accept a seat on the bench” if they were only to serve for a handful of years. Hamilton also emphasized the high level of skill and integrity demanded of federal judges. With a relatively small pool of qualified individuals, it would be imprudent to remove an experienced justice from the bench.

Federalist #78 makes a compelling case for life tenure, and perhaps this system deserves some credit for the long-term stability and legitimacy of the court system. Yet, at present, no reasonable observer could claim that our democracy maintains a healthy independence between the judiciary and the political branches. Republicans — scorning liberal politicians and interest groups for coming out against Trump’s nominee before he had been named — and Democrats — seeing the Republicans’ treatment of Merrick Garland and Brett Kavanaugh’s vengeful diatribe against their party — ought to agree on this point.

Rather than provide a guardrail against political entanglements, life tenure actually increases the political stakes attached to the judicial nomination process. Hamilton assumed that life tenure would eliminate any sort of political calculus from influencing judges’ decisions but did not consider that the executive and legislative branches would use the judiciary to elevate a partisan platform to the highest court in the nation. In a polarized environment, presidents use justices as a form of insurance on their ideology, working to keep their preferences securely represented in the judicial branch long beyond their own presidential terms. In a united government, the legislature feels compelled to assist the president in this endeavor; in a divided government, the legislative majority strives to block a nominee, regardless of his or her individual merits, to impede the president’s agenda. However, if every justice were in office for a restricted amount of time, the judicial appointment would carry less weight, limiting the payoff of a justice favorable to partisan preferences. Supreme Court nominations would become more frequent, less consequential and therefore less polarizing than the nightmare that has unfolded over the past few months and culminated in the confirmation of Brett Kavanaugh to the Supreme Court.  

Kavanaugh’s confirmation to the Supreme Court has delegitimized the stories and deepened the trauma of survivors. It will allow the Court to inflict regressive legal and societal changes upon an entire generation and may ultimately shield Donald Trump from testifying to the FBI. In addition, Kavanaugh’s confirmation — and all other confirmations to the Supreme Court — took place through an outdated process that, despite its constitutionality, runs counter to our most basic democratic values. The principle of “one person, one vote,” however skewed by the Electoral College and other counter-majoritarian mechanisms, is the bedrock of political equality and entirely absent from our current judicial nomination system. While one president may get to name upwards of three or four Supreme Court justices, another may end up nominating zero. Citizens who vote for the former president are able to translate their votes into the long-term ideological makeup of the court, while a vote for the latter president has no such sway. A fair system would not allow some voters’ electoral preferences to shape a generation of legal outcomes solely because of the timing of a justice’s death or retirement.

What sort of alternative system could better promote equality of political influence without discarding Hamilton’s legitimate concerns about judicial independence? Legal scholarship has already begun to tackle this question. In “Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Staggered, Nonrenewable Eighteen-Year Terms,” James DiTullio and John Schochet outline a constitutional amendment in which each Supreme Court justice would serve an 18-year term, with one justice’s term expiring on January 3rd of each even-numbered year. If a justice were to retire, fall ill or pass away before the expiration of his or her term, the president would appoint a successor justice who would only serve for the remainder of the 18 years, keeping the cycle on track. After 18 years of good service, every justice could serve for life on a lower federal court of his or her choice, eliminating Hamilton’s concern about career-motivated judicial decisions.

Most importantly, this system guarantees each president two 18-year appointments per term. A predictable timeline would not only reduce the drama and partisan pressure surrounding court appointments but would also make for greater equality of political influence. Every vote for a president would also weigh into the selection of two Supreme Court justices. Assuming that presidential power continues to shift hands with some frequency, Americans of all ideologies might have greater confidence in the Court’s propensity to consider the best interests of the people.

Even Alexander Hamilton noted that his argument for life tenure was suited to “the present circumstances of this country, and in those in which it is likely to be for a long time to come.” Although Hamilton’s scheme has proven stable for centuries, it now appears that Article III, Section I of the Constitution is undermining the principle of judicial independence that it was intended to uphold. Eliminating life tenure would require a constitutional amendment, which has little chance of success in such a polarized nation. Many would perceive it as the bitter Democrats’ desperate attempt to deny the legitimacy of the most conservative Supreme Court in modern history. Yet, there is nothing inherent in this plan that benefits Democrats or harms Republicans. Whether you blame Republicans’ neglect of Merrick Garland or Democrats’ disgust with Brett Kavanaugh, we can all recognize that our system is dangerously politicized and in need of dramatic change. An alternative to life tenure should garner bipartisan backing, appealing to all who believe in an independent judiciary and true political equality.

Contact Courtney Cooperman at ccoop20 ‘at’

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