Question

would you favor amending the constitution to allow federal judges to serve only a single 10 yr term without possibility of reappointment? Would it undermine the independence of the courts and their ability to uphold unpopular rights? why or why not

Answer 1

I would favor amending the constitution to allow federal judges to serve only a single 10 yr term without possibility of reappointment and it would not undermine the independence of the courts and their ability to uphold unpopular rights as there are problems that are associated with life tenure which are subtle but serious for example:

Decrepitude. Some justices have remained on the Court until mentally debilitated or, at best, long past their prime. There will be more, given our increasing ability to keep people alive long past the point of mental incompetence. William Douglas, who set the record for Supreme Court tenure (almost 37 years), barely functioned during his last 10 months, after a debilitating stroke in 1975; colleagues informally agreed to nullify any decision in which Douglas cast the deciding vote. Hugo Black and Thurgood Marshall were shadows of their former selves years before retiring, at 85 and 83, respectively. "I'm getting old and falling apart," said Marshall on his last day.

Intellectual autopilot. Even absent serious health problems, the rigid mindset that often accompanies advancing age detracts from the open-mindedness that is critical to good judging. Some aging justices, notably the late, fiercely defensive Harry Blackmun (who served to age 85), have come close to putting themselves on autopilot while their clerks have plugged into their new opinions the logic of their old opinions, with liberal dollops of the clerks' own logic.

Hubristic complacency. If power corrupts, life-tenured power corrupts more completely. The justices' vast power "carries dangers of arrogance, hubris, and abuse," in the words of a paper prepared by the two leading advocates of the 18-year term-limit proposal. "The Founders could not foresee that increases in longevity would imperil the rotation in powerful office essential to representative government," the paper added. The authors are Paul Carrington and Roger Cramton, professors and former deans of the Duke and Cornell law schools, respectively.

Randomness. Filling Supreme Court vacancies is a cardinal presidential power. But life tenure leaves each president's allotment to chance, skewed by individual justices' efforts to hang on so as to thwart the ambitions of presidents they don't like. Richard Nixon chose four justices in his first term; Jimmy Carter chose none.

Uglier confirmation battles. Slower turnover has raised the stakes on each new appointment so high as to make confirmation battles even more intense than they would otherwise be. Conservatives hope, and liberals fear, that President Bush may lock in a young, conservative majority that could revolutionize constitutional law for 20 to 40 years. Small wonder that confirmation proceedings have acquired the ugliest, most demagogic trappings of presidential campaigns.

Eroded legitimacy. Quasi-monarchical judicial tenure makes it less likely that turnover will lead to a reconsideration of erroneous or unpopular constitutional rulings. This feeds doubts about the legitimacy of those rulings among voters and elected officials who feel disenfranchised. People may become less willing to comply if they come to see the justices as enfeebled relics of another era. This is of special concern in the wake of a Gallup Poll in May showing public confidence in the Court at the lowest point since Gallup started taking such polls in 1973.

Diminished productivity. The justices have cut their number of full opinions each year in half, to about 75, over the past two decades. They also appear to have delegated more of their work to their 20-something law clerks. The clerks do most of the opinion-drafting and screening-out of the 99 percent of all petitions that the justices dismiss without comment. One result is that the Court shuns some unexciting but important cases that it could use to bring more efficiency to our wasteful litigation process.