Clayton Cramer responds to my earlier post in which I argued that we should consider amending the Constitution to institute limited terms for federal judges of, say, 15 years, rather than give them lifetime appointments.

This is a very tempting position to take, at least when conservatives seem to be in political ascendancy. I have a theory, however, that lifetime appointments for federal judges has a positive effect of buffering the rate of change--and this is actually a good thing, overall.

Consider what happened when FDR tried to ram through the New Deal. A bunch of federal judges, including most of the Supreme Court, were appointed by Republicans, and had a view of the government's role that is often characterized (not entirely accurately) as "strict constructionism." They hindered substantially FDR's well-intentioned by foolish attempts at making the federal government master of the economy. They hindered FDR's efforts, but they could not delay them indefinitely. Still, without these delays, I suspect that FDR and Congress might have gone quite a bit farther down the road to government control than they did.

My understanding is that "strict constuctionism" was coined by Richard Nixon and William Rehnquist during the former's 1968 presidential campaign, and I don't think any of the justices opposed to FDR closely aligned with the theory. (But Mr. Cramer is the historian, not I!)

Anyway, I agree that long terms for judges are useful as a check on the other branches, but it's also important to remember that people lived much shorter lives in the 18th century when the Constitution was written. Who would have guessed, then, that in 2004 we'd have a Supreme Court with an average age of 70 years and not a single resignation in over a decade? Perhaps Mr. Cramer has some knowledge of the average amount of time served (before death or resignation) by federal judges in the 18th and 19th centuries as compared to the 20th and 21st.

Mr. Cramer responds via email,

The term strict constructionist may be that young, but the theory it
promotes--that judges should only use the explicit language of the
Constitution in deciding what is Constitutional--goes back much earlier
than that. I used the language that I did to emphasize that many of
these judges didn't strictly follow their own theories on this.

Take a look here for the duration of various chief justices of the Supreme Court.
Marshall served for 35 years, from 1801 to 1836.

That's a long time... probably too long, I say. According to the table, for whatever it's worth, Chief Justices nominated to the Chiefship in the 18th century served an average of four years, those nominated in the 19th century served 21.8 years, and those nominated in the 20th century served 11.75 years. This doesn't count time spent as a federal judge, if any, before being made Chief Justice. Really, these averages indicate nothing, other than the known fact that I like using Excel to play with numbers.

I'd be very interested in a larger data set of federal judge tenures.

Update 2:
I just saw the earlierly-misposted comment by Tom Round who has some excellent data, quoting The New Republic:

In 1787, the adult life expectancy was less than 39 years. Today the number is nearly double that. Stays on the Court have lengthened almost exactly in sync, the first nine justices… served an average of 8.6 years, while the last nine to leave… have presided an average of 16.7 years. With the median age of the population at 32 years, the median age on the Supreme Court is now 67.



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