Notice And Comment: Should We End Life Tenure For Federal Judges?
This isn't just an issue for the Supreme Court.
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Earlier this week, my friend Laurie Linand I wrote an op-ed for the Wall Street Journal, Federal Courts Aren’t Royal Ones. We identified—and criticized—the recent trend of federal judges trying to influence the president’s choice of their successors by agreeing to retire (i.e., take senior status) if the president picks someone to their liking. And if the president doesn’t pick someone to their liking—well, some judges have rescinded or “taken back” their retirement announcement. We argue that this is inappropriate, as well as a possible breach of judicial ethics.
The ability of federal judges to game the timing of their retirements flows from their enjoying life tenure. In recent months, there has been extensive public discussion about whether Supreme Court justices should have term limits or a mandatory retirement age—possible reforms discussed by President Joe Biden’s Commission on the Supreme Court in its recently released report.
While we’re talking about term limits or a mandatory retirement age for SCOTUS, we should think about the lower courts too. Specifically, is it time to end life tenure for all federal judges? Here are three arguments in favor of ending life tenure:
We’ve all dealt with or heard stories about superannuated judges who unfortunately are no longer up to the demands of federal judicial service—but don’t realize it, so they continue to serve. Term limits or a mandatory retirement age would remove at least some of these judges from the bench.
On the other end of the age spectrum, removing life tenure would reduce partisan pressures on the nominations process, including the pressure both parties face to nominate the youngest nominees possible (so as to maximize the length of their service and therefore their effect on the law). Fix the Court, a leading organization for judicial reform, puts it well: “Life tenure has turned nominations into a political circus. It’s no longer a priority to find the best candidate for the job who will serve with integrity and who has broad life experience. Instead, the party in charge scrambles to find the youngest, often most ideological nominee… in order to control the seat for decades to come.”
Ending life tenure would reduce the ability of judges to game their retirements. The cases of rescinded senior status might be the most egregious, but it’s very common for judges to wait to retire until their political party of choice controls the White House and/or Senate. In an ideal world, such a partisan consideration would play no role in the retirement calculus.
And here are three arguments in favor of keeping life tenure:
The main reason we have life tenure is to ensure judicial independence—the ability of judges to decide cases based on the facts and the law, not political considerations. As Alexander Hamilton argued in Federalist No. 78, the judiciary “is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to [the judicial branch’s] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution.”
And judicial independence might still be an issue even in a system where judges can’t be removed except for good cause but do have term limits. If a judge has to worry about making a living after leaving the bench, this could affect the judge’s decisions. Cf. the argument that some government lawyers go easy on powerful corporations because they’ll be going through the revolving door and defending those companies someday.
The number of judges whose advanced age has unfortunately affected their ability to serve is surely outweighed by the many active judges who are quite elderly, have served on the bench for a long time, and continue to be excellent judges. Ending life tenure will force these judges off the bench, and the judiciary will lose the benefit of their continued active service.
This next point is related to the last point, but analytically distinct: eliminating life tenure will inherently cause us to lose our most experienced judges. If judges, like people in many other fields of endeavor, get better over time and with practice, term limits or a retirement age target for removal the judges we want the most: our most seasoned, wisest judges.
Please share your own views in the comments to this post. Thanks!
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Like me, Laurie is a lawyer turned writer. We worked together back when I was at Above the Law and she wrote one of its most popular columns, Legal Eagle Wedding Watch.
For additional, very interesting discussion of our op-ed, see the latest installment of the Advisory Opinions podcast by David French and Sarah Isgur. (One clarification, relating to something else on the episode: credit for the funny quip about Judge Andrew Hurwitz’s concurrence in Duncan v. Bonta goes to Howard Bashman of How Appealing; I merely quoted Bashman in the latest installment of Judicial Notice.)
For a very thorough case in favor of replacing life tenure for Supreme Court justices with one of the most popular alternatives, 18-year term limits, listen to this excellent episode of Professor Akhil Amar’s podcast on constitutional law or read his testimony to the Presidential Commission on SCOTUS. For the case against term limits for the justices, see this Washington Post op-ed by Judge J. Harvie Wilkinson of the Fourth Circuit. (Speaking for myself, I find the case for 18-year term limits exceedingly persuasive.)
Think of the “10,000-hour rule” popularized by Malcom Gladwell in his book Outliers, which posits that acquiring world-class expertise in many fields requires a significant investment of time—to wit, 10,000 hours.
It should be noted, though, that the rule has been widely questioned, and even Gladwell admits that it might not apply to every field of endeavor. And there are some who believe it does not apply to judging—e.g., Professor Amar, who argues (in the same podcast episode I mentioned earlier) that most judges produce their finest work fairly early in their careers, not during their final years on the bench.
In Canada the mandatory retirement age for federally appointed judges is 75; some provinces have it at 70. That, more than anything, takes any politics out of retirements, especially for the Supreme Court - not that our processes are anywhere nearly as fraught with politics as they are in the US, except for matters of provincial representation and bilingualism on the Supreme Court.
As for the retiring justice's expertise, that does not have to be lost. Those still capable of contributing and willing to do so usually do that in other ways, such as head commissions of inquiry (Willard Estey) or, like Louise Arbour, conduct a review of sexual harassment in the Canadian military; work internationally (a retired Supreme Court judge, Peter Cory, headed the investigation of allegations of collusion between British and Irish security forces and paramilitaries in Northern Ireland); or teach (Rosalie Abella).
The only persuasive argument in favor of term limits is that they would remove the incentive to nominate the youngest candidates possible, in the hopes they will deliver ideologically desirable opinions fir many, many years. We are better off with a system where being appointed a judge or justice is the capstone to a long, successful career at the bar or in public service or in legal academia. I’m doubtful that’s enough to compensate for the loss of judicial independence.