posted on June 11, 2005 04:59:34 AM new
Should we have term limits for judges just like we have for most high prominent positions?
My answer would be yes to avoid the debate along party lines as to who should be appointed.
The wisdom that comes only from experience is a big part of being a good judge. Many judges, perhaps even most, are right in their prime at 65. It would be a shame to force them off the bench strictly on the basis of age (and not a very old age at that).
Still, this majority of the American public may be onto something. (See Matthew Segal's column today for this site, however, for a caveat as to how such polls ought to be interpreted.) People have a sense that too many judges are staying on the bench for too long - indeed, for years after their best work is behind them. And I, for one, cannot say they are wrong.
All told, life tenure for federal judges may well have become a detriment to American political life. It is time to give serious thought to a constitutional amendment limiting judicial tenure to a non-renewable fixed term of years.
Life tenure as a shield of independence
Without question, life tenure for federal judges serves an extraordinarily important purpose: It shields judges from the political pressure that comes with periodic accountability to an electorate. Unlike many state judges, federal judges do not have to worry about raising money for election campaigns or displeasing voting constituencies with unpopular (but legally correct) rulings.
A vital function of federal judges is to protect against a hyper-democratic "tyranny of the majority" in which minority rights are routinely subverted to the will of the majority. Many components of the Bill of Rights that judges are routinely called upon to enforce - the right to free speech, the right to practice one's religion, the right to due process of law (to name just a few) - were designed to protect the rights of insular and sometimes unpopular minorities.
Being a conscientious federal judge is a difficult job under the best of circumstances. Even with life tenure, judges are not completely immune from political pressure. They remain members of their respective communities, and for this reason, they remain subject to all sorts of attendant social pressures. It's hard to be the judge who lets the neo-Nazis march in Skokie, or who lets the accused rapist walk free because the police violated his constitutional rights.
Imagine how much harder the job would be if -- as is, regrettably, the case with some state court judges -- a federal judge's professional livelihood depended on securing re-election directly, or on the hope of reappointment by an elected official. Judges like job security just as much as the next person. It's only because judges don't have to worry about currying political favor that they have a fighting chance to carry out one of the judiciary's most significant roles.
Life tenure is unnecessary
In sum, then, it's important to protecting judge from political pressure and electoral accountability - and life tenure is one way of doing that. But importantly, this ideal does not require life tenure.
Appointment without possibility of renewal for a fixed term of years would achieve the same goal. So would appointment until a mandatory retirement age (unwise as this might be). In both scenarios, judges still would not have to run for office, seek reappointment, or otherwise worry about political popularity.
So the real question is not whether life tenure is essential to judicial independence, but whether other judicial tenure rules could equally preserve judicial independence while better serving other goals. And to this question, the answer may well be yes.
Comparing judicial tenure rules
Life tenure creates at least three problems: First, it allows bad judges to remain on the bench indefinitely (except in the extraordinarily rare case of impeachment). Second, life tenure allows all judges, including some very good ones, to remain on the bench when they are no longer doing their best work (or even close to their best work). Third, and finally, life tenure allows judges to remain on the bench, even as their productivity and effectiveness dwindle, while they wait for the election of an ideologically compatible President who will nominate an ideologically compatible successor.
Cutting short life tenure is certainly not a perfect solution. Yes, it would cut short the tenure of bad judges. But it would also cut short the tenure of very good judges.
Take, for example, a rule limiting federal judges to 20 years on the bench. A twenty year term allows a judge to complete a very substantial body of judicial work. Yet such a term would have the vast majority of federal judges retiring in their 60s or 70s. And it would be easy to compile a long list of terrific federal judges who were (and are) still highly productive and making a significant impact on the law long after the 20-year mark.
But this downside to a 20-year limit has to be balanced against some substantial benefits. At some point, a lot of even very good judges get too set in their ways and, as they get older, delegate too much authority to their law clerk assistants (though, of course, younger judges sometimes do this too). A 20-year term limit would guarantee greater turnover in the federal judiciary. And that turnover would, as a cumulative matter, bring more energy and a greater flow of fresh ideas onto the bench.
Should judicial tenure be shorter than life?
Of course, I recognize that amending the Constitution to create a youth movement in the judicial branch would be extreme, to say the least. But in my mind, the political ramifications of life tenure make the issue a closer call.
Our system for nominating and confirming federal judges is in crisis. One reason it is in crisis is that the stakes are so very, very high: Every judicial vacancy translates into a lifetime appointment. Thus, the party in power can try to project its political legacy far into the future by naming young ideologues to the federal bench, knowing that they will keep their influence for 30 or even 40 years down the road.
A 20-year term limit would lower the stakes - again, through the mechanism of increasing turnover. In addition, it would reduce the incentive to select younger and younger nominees - some of whom lack the experience and accumulated wisdom that should be the hallmark of judicial appointees. And it would prevent judges from staying on the bench too long just to wait out another Administration in the hope that a like minded President will be elected the next time around.
Life tenure and the Supreme Court
The problem at the Supreme Court level is especially acute. It's no secret that most, if not all, of the Justices want their successors named by an ideologically compatible President.
For instance, it was widely rumored that Chief Justice Rehnquist would have retired but for Bill Clinton's winning and holding the presidency. Certainly, Justices William Brennan and Thurgood Marshall hoped to outlast a string of Republican presidents, though they could not manage it.
As matters now stand, there has not been a court vacancy for ten years. Any vacancy now will be a cataclysmic event - both because the nation and the Court itself are so closely yet deeply divided, and because, with life-tenure, the justices now routinely serve for 25 to 30 years.
Control over the appointment process to the federal judiciary is one of the most important powers any Administration has. Yet, as an electorate, we cast our votes having no idea which judges on which courts a new Administration will get to replace. Instead, we are left to play an absurd and unhelpful guessing game about which justices might step down in what administration.
Staggered terms with no reappointment
So let me throw out a modest proposal for the Supreme Court: We should amend the Constitution to limit justices to a single 18-year term. The start of that term for each of the nine justices should be staggered two years apart, so that two justices will be retired from the Court during every presidential term. (To maintain this staggering, the replacement for a justice serving less than 18 years would only serve out the remaining years on that term).
This proposal would rejuvenate the Court on a regular basis. It would prevent justices from hanging on for political reasons. It would regularize the replacement process so that voters would know the judicial stakes (two pre-identified justices who would be replaced in the next Term) in every presidential election. And it would somewhat temper the importance of each individual appointment, because none of the appointees could stay on the Court indefinitely.
Truth be told, I have not yet even convinced myself that the pros of this idea outweigh the cons. But I am convinced that it's time to start a debate about what has always been a sacred cow: federal judges' life tenure.
Absolute faith has been shown, consistently, to breed intolerance. And intolerance, history teaches us, again and again, begets violence.
----------------------------------
President George Bush: "Over time the truth will come out."
President George Bush: "Our people are going to find out the truth, and the truth will say that this intelligence was good intelligence. There's no doubt in my mind."
Bush was right. The truth did come out and the facts are he misled Congress and the American people about the reasons we should go to war in Iraq.
posted on June 11, 2005 08:12:09 AM new
Ron this is why this past election was so important because of the judges but now the liberals want to change the rules.
Well if it was that important why didn't they run a candidate that could have beat Bush, then they would have been able to appoint the judges.
_________________
posted on June 11, 2005 10:58:17 AM new
Linda do a little more research and you will see that there was debate about this topic in 1997 so it just did not happen after Bush was elected. Unless you are now going to say Bush was President during 1997.
Why not just rewrite the Constitution and get rid of the term limit for the President? It is good that we get some fresh blood in the White House every now and then.
What we need is term limits for Congress.
Absolute faith has been shown, consistently, to breed intolerance. And intolerance, history teaches us, again and again, begets violence.
----------------------------------
President George Bush: "Over time the truth will come out."
President George Bush: "Our people are going to find out the truth, and the truth will say that this intelligence was good intelligence. There's no doubt in my mind."
Bush was right. The truth did come out and the facts are he misled Congress and the American people about the reasons we should go to war in Iraq.
posted on June 11, 2005 01:19:54 PM new
And Linda notice he doesn't have you on ignore like he says he does. As vocal as he was there he is answering your post.
I don't think we need term limits for congress I just think that better candidates need to run against the incumbents. In Wisconsin we have some good congressmen and BTW they are democrats. Feingold has been in for some time. Kohl a littler shorter time. The house has some good Wisconsin people. Sensenbrenner, Ryan and Green, Republicans and Tammy Baldwin, Ron Kind,
Gerald Kleczka, Tom Barrett, Thomas Petri
and David Obey Democrats and all are doing good. In this list there are some that bring controversy but where isn't there any.
Start fooling with the Constitution is like fooling with Mother Nature.
posted on June 11, 2005 01:29:21 PM new
Noticed, did ya, Libra?
The way I see it is that since the dems haven't been able to get back the control they started losing in 1996...they're now using the judges in the courts to enforce their liberal agenda. They LOVE the activist judges who 'make' law rather than follow law as written.
So...since they are getting some results using that method, activist judges....now they want to insure that no moderate/conserative/prolife judges are seated. Or for the ones already seated...then they want to change the Constitution so they CAN get rid of those who are insuring our Constitution is followed.
"Whenever the nation is under attack, from within or without, liberals side with the enemy. This is their essence." --Ann Coulter
And why the American Voters chose to RE-elect President Bush to four more years. YES!!!
posted on June 11, 2005 02:19:09 PM newThey LOVE the activist judges who 'make' law rather than follow law as written.
Just like you Republicans wanted in the Terry Schiavo case
You can't have it both ways.
And who is so interested in changing things when they don't like the outcome, Linda. That is right. It is the Republicans who have been the most vocal about changing things they don't like. They wanted to change Senate rules so unethical Republican Senators could still serve (do I have to mention Tom Delay). So much for the party of morals. Who wanted to amend the constitution because they are so afraid of gay marriages. It wasn't the Democrats.
Here is a little more information for you Linda on term limits for Congress:
The Term-Limits Amendment
The American people overwhelmingly support congressional term limits. Opinion polls show 70–80 percent approval ratings. During the 1994 congressional elections, House Republicans proposed a term-limits constitutional amendment in their "Contract with America."
After taking control of the House, Republicans led by Speaker Newt Gingrich fulfilled their promise to bring term limits to the floor for debate and a vote. Actually, the House considered four different versions of a term-limits constitutional amendment. The main Republican proposal called for a maximum of six consecutive two-year terms in the House (12 years) and two consecutive six-year terms in the Senate (also 12 years). These would not be lifetime limits. Term counting would begin at the first election after the amendment had been ratified by three-fourths of the states.
During the House debate, the majority of Democrats opposed any version of term limits. While most of the Republicans favored at least one of the proposed amendments, some veteran GOP House members rejected the whole idea. "In time of real crisis, we need people of experience," protested 20-year Republican House member Henry J. Hyde (R-Ill.). By contrast, many freshman House Republicans criticized the main GOP proposal for not going far enough. They wanted to cap House terms at three (6 years).
Generally, House members in favor of term limits argued that elections would become more competitive, resulting in a Congress based more on merit than longevity. Since legislators would remain in office for relatively short periods of time, they would be more likely to make tough legislative choices and less likely to become dependent on special-interest groups for campaign contributions. The new citizen lawmakers would also be less susceptible to corruption, complacency, and arrogance than "lifetime legislators."
The opposition countered that term limits would sweep out both good and bad lawmakers. Those elected to take their place would tend to concentrate on immediate issues rather than what was best for the nation in the long run. By being in Washington for only a few years, senators and representatives would be apt to become overly dependent on government bureaucrats and special-interest lobbyists for information about pending legislation. On the last day of the debate in the House, Rep. Hyde asserted that, "America needs leaders, it needs statesmen and it needs giants—and you don't get them out of the phone book."
On March 29, 1995, the House voted 227-204 in favor of the main Republican term-limits amendment. But the vote fell short of the two-thirds majority (290) needed for the constitutional amendment to pass.
Now that the Republicans have control of both houses, they no longer want term limits. Just one more example of their flip flopping.
Absolute faith has been shown, consistently, to breed intolerance. And intolerance, history teaches us, again and again, begets violence.
----------------------------------
President George Bush: "Over time the truth will come out."
President George Bush: "Our people are going to find out the truth, and the truth will say that this intelligence was good intelligence. There's no doubt in my mind."
Bush was right. The truth did come out and the facts are he misled Congress and the American people about the reasons we should go to war in Iraq.
Just like you Republicans wanted in the Terry Schiavo case You can't have it both ways.
I haven't a on clue what you are talking about with your above statement. First we're discussing term limits for JUDGES....then you change that into term limits for our Congress....and now you're harping on Terri Schiavo?
Speaking of Terri Schiavo.....yes, I understand the liberals thinking allowing someone to be STARVED and DEHYDRATED to death....is A-okay with them. But I'm REAL glad that the republicans aren't. It was legalized MURDER....and her death is on all those who supported the removal of her life-supporting tubes.
And who is so interested in changing things when they don't like the outcome, Linda. That is right. It is the Republicans who have been the most vocal about changing things they don't like. They wanted to change Senate rules so unethical Republican Senators could still serve (do I have to mention Tom Delay). So much for the party of morals.
Come back and talk to me about this WHEN DeLay ever faces ACTUAL charges, rather than ACCUSATIONS the left keep harping on...and when the dems on the ethics committee EVER ALLOW his side to be presented. THEN will the truth come out. But those obstructing dems on the ethics committee would rather keep repeating these charges that ACTUALLY hold hearings on them.
Who wanted to amend the constitution because they are so afraid of gay marriages. It wasn't the Democrats.
More correct to state it wasn't ALL dems....some did. And yes, I support a Const. amendment to stop all the actions of the activist judges....for good...by taking this action. OUr country was founded on and has survived for 227 years mostly because the institution of marriage and the structure of family gave us our foundation. Gay marriages only hurt our 'foundation' even more....they mock it.
Here is a little more information for you Linda on term limits for Congress: The Term-Limits Amendment The American people overwhelmingly support congressional term limits. Opinion polls show 70–80 percent approval ratings.
LOL....now I suppose you going to show me where I EVER said I didn't agree with term limits on members of Congress? LOL....no, probably not...AS I'VE EVER SAID I DIDN'T.
You're something else, logansdad....something else for sure.
"Whenever the nation is under attack, from within or without, liberals side with the enemy. This is their essence." --Ann Coulter
And why the American Voters chose to RE-elect President Bush to four more years. YES!!!
[ edited by Linda_K on Jun 11, 2005 03:22 PM ]
posted on June 11, 2005 04:20:26 PM newOUr country was founded on and has survived for 227 years mostly because the institution of marriage and the structure of family gave us our foundation.
Our country was not founded on nor has it survived because of the institution of marriage or the family structure. What history books did you read? I am quiet sure that is not why the English came to America. The English fled to America becaus of religious persecution in their homeland
Traditional marriage, you mean were people married because they wanted status, not marrying out of love?
Traditional marriage in 1848 : Traditional marriage laws included no rights to ownership or control of property for women, husband control of her earnings and real property after marriage, no right by the woman to contract or sue.
There is no such thing as "traditional marriage". Marriage has evolved over time. It was not until recently where couples married out of the love. Every generation has said the younger generation is ruining marriage. So keep peddling the same old tired argument.
I suggest reading the book "Marriage, A history: how love conquered marriage"
For most of our history, marriage was not a relationship based on mutual love between a breadwinning husband and an at-home wife, but an institution devoted to acquiring wealth, power, and property. Picking a mate on the basis of something as irrational as love would have been considered absurd. Only in the nineteenth century did marriage move to the center of people's emotional lives, when the wife became the "angel of the home" and the husband the "provider." Yet these Victorian ideals contain the seeds of today's marriage crisis. As people began to expect romance and intimacy in their marriages, their unions became more fragile. The postwar era of the 1950s ushered in a brief "Golden Age" of marriage-the Ozzie and Harriet years-but the same advances in birth control, increased individual autonomy, and women's equality that made marriage more satisfying than it had been in the pastalso undermined its stability.
Marriage has changed more in the last thirty years than in the previous five thousand, and few of the old "rules" for marriage still apply. In the courts, the op-ed pieces, and at the dinner table, battles rage over what marriage means, why people do it, and who can do it. Marriage, a History is the one book you need to understand not only the vicissitudes of modern marriage but also gay marriage, "living together" and divorce. Stephanie Coontz shatters dozens of myths about the past and future of married life and shows us why marriage, though more fragile today, can be more rewarding than ever before.
Absolute faith has been shown, consistently, to breed intolerance. And intolerance, history teaches us, again and again, begets violence.
----------------------------------
President George Bush: "Over time the truth will come out."
President George Bush: "Our people are going to find out the truth, and the truth will say that this intelligence was good intelligence. There's no doubt in my mind."
Bush was right. The truth did come out and the facts are he misled Congress and the American people about the reasons we should go to war in Iraq.
posted on June 11, 2005 09:14:50 PM new
::By contrast, many freshman House Republicans criticized the main GOP proposal for not going far enough. They wanted to cap House terms at three (6 years).::
Just out of curiosity... I wonder how many of those that supported 6 year term limits actually applied their beliefs to their own careers.
Tom Tancredo from Colorado was one of the supporters but when it came time to not run for a forth term or not live up to his pledge of only three terms he said that God had told him it was OK to break the pledge.
~~~ • ~~~ • ~~~ • ~~~ • ~~~
No, I'm saying -- I'm merely -- I'm saying what I'm saying. I don't know why I'm always having people say, are you trying to say -- you know what you can do if you want to know what I'm saying is listen to what I'm saying. What I'm saying is what I said ...
posted on June 11, 2005 09:21:30 PM new
DUH...""Speaking of Terri Schiavo.....yes, I understand the liberals thinking allowing someone to be STARVED and DEHYDRATED to death....is A-okay with them. But I'm REAL glad that the republicans aren't. It was legalized MURDER....and her death is on all those who supported the removal of her life-supporting tubes. ""
If this was true which it isn't, it's hysterical nonsense, then why isn't linduh running all over the country SAVING these "murder" victims ?????
Why is she in here posting when these "murders" are happening all over the U.S. and around the world on a daily basis?????
linduh, if all these murders are taking place shouldn't you call the police and tell them ???
posted on June 12, 2005 06:34:14 PM new
Seeing how we are no longer talking about judges, I do think term limits should be placed on congress. but then their last term could be just a free ride.
Something would need to put into place to stop that.
posted on June 12, 2005 10:15:29 PM new
Term limits are needed very much. We have too many judges right now that think they are rulers of the free world. In the lower courts where they have to be elected, no one wants to run against them. Why? Because no lawyer wants to lose against a sitting judge then have to try a case in front of that same judge. Want to talk about corruption. This really isn't a Repulican Democrat issue. It is a what is right and wrong issue.
Term limits are needed for all goverment officials IMHO.
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Alive in 2005
on the USSC.
