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Judicial independence and tinkering with tenure

By Marion Edwyn Harrison
web posted January 31, 2005

The Founding Fathers, well aware of Crown and Parliamentary pressure upon King's Bench and other English Judges during, and preceding, the American Colonial Period, advocated, and the Constitution provides, life tenure during "good behavior" for Federal Judges.  Alexander Hamilton's arguments, set forth among other places in Federalist # 78, are convincing and eloquent, as, of course, is most Hamilton prose, remarkably brilliant, talented and versatile that he was.  (A sidebar point:  If you haven't read Ron Chernow, Alexander Hamilton [Penguin Press, 2004], treat yourself.  From a sordid Saint Croix background to unparalleled influence in government, finance, law -- a man of extraordinary, probably incredible, grasp.) 

With infrequent, and not significantly serious, malfunctions, the system of life tenure during good behavior -- always subject to impeachment, see, e.g., Chief Justice (as historian) William H. Rehnquist's very readable Grand Inquests   (Morrow, 1992) -- has functioned reasonably well.  Perfect and without mishap life tenure is not but one must consider the alternatives.

The left wing, which unfortunately includes so many in academe (including law schools), having lost the Presidential, Senatorial and House elections with a rather solid thud, frenetically is organizing all manner of challenges -- to judicial nominations, to the legislative process, to a 110,000-vote Ohio Bush victory, to the Electoral College, you-name-it, for lack of grace and vengeance in defeat has no boundary.  The current pop -- there will be something else tomorrow -- is to limit Supreme Court Justices and/or all Federal Judges to some kind of term.  Never mind that it would take a controversial Constitutional Amendment, none controversial when enacted ever having been approved.  The clamor is good for revving up the already embittered who do not accept fair electoral -- and popular-vote defeat, for clouding -- or worse, smearing -- any Bush Federal judgeship nominee and just generally for sewing seeds of dissension.

The Daschles of the Senate -- yes, the Durbins, Leahys, Reids, Schumers and the like are still there -- already have foreclosed many fine judges, deans, professors and private law practitioners from submitting to the ethical, personal and professional assault that so often bellows out of the Senate and the groveling media.  It isn't every distinguished man and woman who would trade success outside the Federal Judiciary for the scorn and whiplash of the contemporary advise-and-consent process.

All the worse if the nominee once confirmed must limit himself to a fixed term on the Federal Bench and then, unless ill or very elderly, seek to return to clients long gone, to tenured chairs long filled, to other opportunities overtaken by others.  Yet worse, if the Judge were eligible for renomination, is the Judge to keep his eye on -- or adjudicate in light of -- the latest political gambit of some Senator.

Most people taking the Federal Bench in their 40s or 50s take a compensation cut, some an enormous cut, with no way to make it up.  Most in the 60s also take that cut although usually they more nearly can afford it.  The retirement -- full salary for life -- of course is generous but let's consider it in perspective.  If one ascends the Federal Bench at 60 and retires, as eligible on 10 years at 70, or ascends at 50 and retires on 15 years at 65, one does well if one lives long but otherwise usually has foregone considerable income.  We can dally with the age -- income mix but the economic bottom line is that without lifetime tenure many, obviously not all, of the caliber of lawyers we need on the Federal Bench would not consider it.  Too few already are considering it because they may be Borked.

Senators and Representatives can become lobbyists, collect retirement pay up to 80 per cent, double or triple or quadruple their earned income.  Judges probably couldn't and we wouldn't want them to do so anyway.

There is no compelling argument in favor of a Constitutional Amendment to term-limit Federal Judges.  Were there one, the time to begin evaluating it would be after the emotion, bitterness and rancor of the overwhelming 2005 Democratic defeats have subsided.  Whether in this context or any other, the good citizen must hope, and the citizen of faith must pray, for an imminent restoration of grace and realism in defeat.  Meanwhile, now is not a time further to whip the Federal Judiciary and the confirmation process.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.


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