It's time to consider amending the Constitution to impose limited terms on federal judges, all the way to the top at the Supreme Court. The terms should be nice and long, say 15 years, but considerably shorter than the lifetime tenure now enjoyed by our judicial aristocracy. The idea that whomever President Bush appoints during his second term could still be making law for my grandchildren is ridiculous. Maybe in an ideal world judges-for-life work, but in reality they're no better than presidents-for-life.
The idea behind life terms is that the judiciary shouldn't be politicised, but take a look around -- it's a little too late for that. I don't think federal judges should be popularly elected (as many state judges are), but I don't think we should have to impeach them be rid of them. Limit judges to one 15-year term, and then let them ply a useful trade in the public sector.
Agreed. Lifetime power, no matter the position, is always dangerous. I have often wondered why there isn't a limit involved in the balance of power. Checks and balances could be revisited and adjustments made, I think.
DD: Yeah, they made a good stab at it 200 years ago, but the system could do with a little tweaking now. The problem is that I don't really trust anyone to make the changes but myself!
This idea's been supported by both Michael Parenti, of the Left (in Democracy For the Few, St Martins, 1988, p 315) and Gregg Easterbrook, of the centre-Right (in "Geritol Justice: Is the Supreme Court Senile?", The New Republic 19-26 August 1991, pp 17-19):
In Australia, we have a compromise position between fixed terms and (literal) lifetime tenure: a constitutional retirement age. A 1977 referendum amended the Federal Constitution to set this age at 70 for High Court justices and to let Parliament fix a [non-retrospective] lower age for inferior Federal Court judges. Given that any jurist eminent enough to be appointed to the national supreme court will be at least 50-55, this sets a de facto term of 15-20 years. Before 1977, many Justices served into their eighties, and one spent four decades on the High Court!
Most States have a similar provision, setting either 70 or 72. (I note that Canadian Senators must retire at 75). A curious anomaly arose last week when a Queensland judge, Brian Boulton, was required to retire on his 70th birthday as required by that State's law; he immediately accepted a judicial appointment across the State line in New South Wales, where the age is 72! Our former Chief Justice, Sir Anthony Mason, retired from the High Court at 70 in 1995, but has served since by invitation on the supreme court of Fiji.
It may well seem a waste to bump active and keen-minded jurists off our own High Court, when they're still quite capable on serving on other nations'. But balanced against the "false negative" of, say, a near-senile Thurgood Marshall who can do no more than "hang on until the Democrats get back in the White House" and let his clerks write all his opinions, this "false positive" is probably the lesser evil.
Life time appointments are good, but what would improve things is reconfirmation by the people through voting. This is done in several states now on judges. They are originally appointed, but at some defined time they must stand for reconfirmation through popular vote. Forbid campaigns and advertising. With todays blogs we would get the facts on their decisions and their impacts.
DP: I think legislatures do a better job of vetting judges than the public would, so I'm not generally in favor of electing them popularly. That said, if there were such elections, I would certainly not forbid campaigning and advertising.