A long damn time in a long black robe


The Senate showdown on judicial filibusters (a while back) and the upcoming retirement of Sandra Day O'Connor has got me thinking about the lifetime appointments of Supreme Court justices and high-court judges throughout the land. And I have a question.

Is there any reason why it's important that the appointments be for life, as opposed to a very long but fixed period of time?

Granted, there's a legal reason; the lifetime appointments are specified in the Constitution, in Article III, Section 1:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

But what I'm after in my question is something else: Is that good?

We want the judiciary to serve as a check on the executive and legislative branches. This is achieved in a couple of ways.

First, there's the fact that justices never have to be elected, and are theoretically therefore not beholden to any electorate. They can't be kicked out by the voters for making unpopular decisions, nor can they lose their office if they "betray" the patrons who appointed them.

Second, the long (but indeterminate) term provides a moderating influence on swings in any direction. Since any high court consists of individuals appointed by multiple executives and confirmed by multiple Congresses, the decisions issued by that court will be less prone to be swayed by political fads.

But why is a lifetime appointment necessary? Wouldn't both of the aims outlined above be served by very long, non-renewable appointments?

Lifetime appointments place the citizens at the mercy of the vagaries of human health. We think there might be a retirement on this bench; we think someone might die. So we don't actually know what's at stake when we select our executives, and the number of appointments per President isn't constant.

Defined periods of appointment would confer one significant advantage over the current system, namely, that we (the people) would know what to expect. So-and-so takes office today, and we know that e.g. twenty years later there is a vacancy coming up. If the initial appointments were spaced out intelligently, each President would get to nominate the same number of justices. (A system in which nine judges each sat for eighteen years would create a vacancy every two years...once for each Congress, twice for each Presidential term.)

Beyond eliminating uncertainty, constant-length appointments would rescue us from the macabre death-watch that is a constant aspect of any discussion of future court appointments. Who's going to buy the farm (or become so infirm that they are unable to work) next? On whose watch will that (happy/sad/tragic/hopeful) event occur? This touches on another point: It's at least possible that some degree of political gamesmanship enters into the Justices' decisions about when to retire, and if one accepts that possibility one must also accept that a Justice who ultimately retires because they felt too infirm to continue the work competently might have stuck around for a few too many infirm, incompetent years.

No one in the mainstream is talking about adjusting the Constitutionally specified, life-long appointments of Supreme Court Justices. I'm not necessarily advocating doing that. But I had the thought, and thought I'd share it, in the rough and unscholarly form in which you see it. I hope it will make interesting grist for the mill.

So: What do you think? What would be the advantages and disadvantages of a fixed-length, non-renewable appointment for these judges?

Posted: Wed - July 6, 2005 at 08:00 AM   | Category:     |   |   | |


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