Out of Left Field: Past time to end ‘aristocracy of the robe’


Regardless of whether our president is a Republican or a Democrat, our nation will be much better served if we now end life tenure for Supreme Court Justices, and we should do the same for the more than 860 Article III federal judges, who also serve without limits.

The perspicacious French writer, Tocqueville, was on the mark, nearly 200 years ago, when he characterized America’s federal judiciary as “the aristocracy of the robe.”

Even then, common sense dictated that life tenure was at odds with fundamental principles of representative democracy.

But, some will argue, the Founding Fathers knew what they were doing when they set up this version of separation of powers and we should not change their original intent; however, we are no longer well-served by leaders who serve for life — if we ever were.

Studies of bench longevity show that between 1789 and 1970, Supreme Court justices served just less than 15 years, with vacancies occurring at two-year intervals.

In contrast, from 1970 to 2007, justices served an average of 26 years, and gaps between appointments were longer.

All major Western nations, and 49 of our states (Rhode Island is the outlier), place term or age limits on their highest court judges.

In his book, “Our Undemocratic Constitution,” Sanford Levinson states that all of those shared actions “demonstrate that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary.”

Do we really want to continue to play judicial appointment roulette, especially as chance, accidents, deaths, can determine when and how many appointments presidents get to make to the bench?

Even more important, do we want any President to name justices — and judges — who may outlive his or her administration by 30 or 40 years?

Do we want to continue to encourage the appointment of young justices to insure that the views of the party that confirmed them will endure for decades? (The average age of the last six Republican justices is 50; Neil Gorsuch was 49 when he was confirmed).

The argument here is not one for limited terms because of ageism; rather, limited terms will provide accountability.

Life expectancy is now 76.4 for American males, and 81.2 for women; it has increased by more than 30 years since 1900.

Does not logic suggest that, with reasonable and defined terms for justices, much can be gained by naming older men and women with deeper experience?

Members of the House are reviewed every two years; candidates for President must compete after four years (and they are barred from serving more than two terms).

Why should we exempt life justices from some form of accountability, particularly as times change after they are confirmed, and as all other officers of government must stand for review before our democratic voters?

Changing the system of lifetime appointments will not be easy.

Our current society has an exaggerated respect for the lifetime federal judges, which is more understandable if one supports conservative views that bolster the rich and the powerful, as that is where courts have resided for most of our history.

Calls for judicial term limits have been around for a long time.

There have been growing efforts since the abomination of the 2000 Bush v. Gore 5-4 decision; hundreds of law professors denounced that decision as blatantly partisan and in violation of the Constitution, and even of the Republican majority’s past rulings.

Many called for impeachment of the Scalia-led majority.

That 2000 decision has been compared with two of the worst decisions in Supreme Court history: Dred Scott in 1857 and Plessy v. Ferguson in 1896.

Vigorous protest and reform efforts following the contested election of 2000 were stopped short by the 9/11 attacks and by the turn to misdirected military actions from the Bush administration.

Is our society ready for Trump’s upcoming impact on the judiciary?

Because the Republican Senate, since 2015, has refused to approve Obama’s nominees for federal judgeships, Trump now has a chance to fill more than 120 vacancies, the most ever for a new president.

In addition to Neil Gorsuch, he could name as many as three more Supreme Court Justices, and, if they are as young as Gorsuch and Clarence Thomas at confirmation, they could be still serving when our grandchildren have grandchildren.

It is long past time to change lifetime tenure for justices and judges.

There is concern about whether ending life tenure for Supreme Court Justices will require a constitutional amendment, which is not an easy process.

Some constitutional authorities believe that it can be done by congressional legislation, alone.

But, even if an Amendment is needed, let’s go for it.

Whichever party you support, it’s in the country’s interest to avoid excesses of a life judiciary that is not reasonably accountable to citizens.

[In my next column, I will examine common sense proposals to improve the process of judicial selections and ways to make the judiciary better serve responsive democracy.]


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