Text 12954, 101 rader
Skriven 2005-05-26 13:55:38 av Alan Hess
Ärende: term limits for judges?
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Perhaps it would be a good idea not to have judges serve for life.  15 or even
30 years terms may be a better idea.  
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Boston.com     

The Boston Globe
JEFF JACOBY
Don't let judges serve for life

By Jeff Jacoby, Globe Columnist  |  May 26, 2005

THE DEAL that pulled the Senate back from the brink of a shootout over judicial
nominations this week didn't really settle anything. Odds are the deal will
collapse as soon as the next vacancy opens up on the Supreme Court. Assuming
President Bush sends up a nominee whose ideological profile matches those of
the sitting justices he says are his favorites -- conservatives Antonin Scalia
and Clarence Thomas -- Democrats and Republicans will square off and the Senate
will be back at the OK Corral.

But how could it be otherwise? The Supreme Court has become an immensely
powerful institution, one that sets national policy on contentious issues from
abortion to race to property rights. Is prayer permissible at a high school
commencement? The Supreme Court decides. Can Congress ban political ads that
mention candidates by name? Ask the Supreme Court. May a state execute a
17-year-old murderer? Prohibit flag-burning? Authorize medical marijuana? It's
up to the Supreme Court.

Alexander Hamilton described the judiciary as the ''least dangerous branch,"
since it had no authority to appropriate funds and no way to enforce its
decisions. But federal courts today exercise powers the Framers never gave
them. They overturn laws passed by legislators, constitutionalize rights not
enumerated in the Constitution, even determine the outcome of a presidential
election. And if that doesn't make them potent enough, federal judges hold
their jobs for life. They are unelected, unaccountable -- and enormously
influential. Is it any wonder that judicial appointments are fought over so
fiercely? So much is riding on the outcome.

Ultimately, the only way to reduce the acrimony is to make the judges less
powerful. That could be accomplished by eliminating judicial review or enacting
limits on the courts' jurisdiction. But there is an easier and more realistic
approach: Do away with lifetime tenure.

When the Constitution's authors established a judiciary with unlimited terms,
adult life expectancy in the United States was around 40 -- half of what it is
today. Between 1789 and 1970, Supreme Court justices served an average of just
over 15 years and retired at 65 1/2. Since 1970, justices have stayed on the
court for an average of 25.5 years, and their age at retirement has climbed to
nearly 79. That isn't what the Framers had in mind.

No president can hold power for more than eight years, but the most junior
member of the current court -- Stephen Breyer -- has already been there for 11
years. Two others, John Paul Stevens and Chief Justice William Rehnquist, have
been on the court for more than 30 years.

For at least four reasons, this is not a good thing.

First and most obviously, lifetime tenure vastly increases the stakes in
filling each Supreme Court (and Court of Appeals) vacancy. Senate battles over
judicial nominations would not be so bitter if the consequences of losing
weren't likely to persist for decades. Second, high court justices are tempted
by the current arrangement to time their resignations for political reasons.
Liberal judges have an incentive to stay on the bench until Democrats control
the White House and/or the Senate, while conservatives wait until Republicans
are in charge.

Third, as law professors Akhil Reed Amar of Yale and Steven Calabresi of
Northwestern wrote in 2002, ''life tenure encourages presidents to nominate
young candidates with minimal paper trails and maximal potential to shape the
future" -- by passing more experienced individuals whose resumes might trigger
an ideological assault. And fourth, with justices staying on the court longer
than ever, the judiciary is deprived of regular infusions of new blood. Result:
a decrease in intellectual vigor and awareness of contemporary culture.

The argument in favor of life tenure for federal judges is that it strengthens
them against political attack and outside influence, making it easier to render
unpopular decisions without fear. ''The Constitution protects judicial
independence not to benefit judges," Rehnquist wrote in his 2004 year-end
report on the federal judiciary, ''but to promote the rule of law: judges are
expected to administer the law fairly, without regard to public reaction."

But life tenure can be replaced with fixed judicial terms without weakening the
autonomy of the federal judiciary. No one questions the independence of the
governors of the Federal Reserve, who like judges are appointed by the
president and confirmed by the Senate but who are limited to 14-year terms.
Likewise the comptroller general -- the federal ''watchdog" -- whose term lasts
15 years.

Why not a similar arrangement for high-ranking federal judges? Amending the
Constitution is never easy, but the situation cries out for reform. Senators
shouldn't have to threaten each other with ''nuclear" attack in order to bring
judicial nominees to a vote. If there were less at stake -- if Supreme Court
and appeals court judges no longer served for life -- they would no longer feel
the need to do so.

Jeff Jacoby's e-mail address is jacoby@globe.com  
+ Copyright 2005 The New York Times Company
 

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