Lifetime tenure – an indispensable ingredient in our Constitution

When vocal advocates are on the losing side of a judicial decision, a common reaction has been to demand an end to lifetime tenure. But this “solution” may cause more problems than it would solve.

Photo by Bradley Trahan

Less than two weeks ago, The Guardian dropped a domestic surveillance bombshell on the American public.  The National Security Agency (NSA) had requested phone record metadata from all of Verizon Wireless’s customers, rather than the usual practice of targeting specific suspects.  The public outcry was immediate, and the media coverage comprehensive.  Responding in a memo to The Guardian’s story, without expressly acknowledging the existence of the program, was Verizon’s Executive Vice President and General Counsel.  In that memo, Randy Milch stated that the law authorizes federal courts to compel companies to provide information in certain circumstances, and that if “Verizon were to receive such an order, [it] would be required to comply.”

While a multitude of privacy concerns can be found within the NSA’s actions, the Verizon memo presents an interesting question:  Why is a company, or anyone for that matter, required to comply with a court order?  Or, even more to the point, why are court orders viewed as legitimate when so much of the federal government is looked upon with disdain and derision?

The courts have been afforded a sense of legitimacy because of the fact that judicial orders are not seen as partisan tools.

The courts have been afforded a sense of legitimacy because of the fact that judicial orders are not seen as partisan tools.  Importantly, the judiciary is considered an independent “final say” on the issues coming out of Washington.  So much of what “the law” is considered to be by the media and general public is based upon Congressional posturing and Presidential press conferences.  But judges generally remain out of the public eye and are perceived as a whole to not act with political ambition.  Rather than answer to constituents, a judge answers to the Constitution.

The court’s legitimacy based upon nonpartisan independence is what leads Verizon’s general counsel—and others who understand the law—to follow such court orders.  Judicial legitimacy is also a likely reason why Rand Paul, rather than call for action from his colleagues in the Senate, publicly declared he was considering going to the Supreme Court to reign in the surveillance program.  Even if Mr. Paul is successful, critics will continue to question the Foreign Intelligence Surveillance Court (FISC), asking if it is simply a tool of the political branches acting as a rubber stamp for governmental power and overreach.  Perhaps sensing the erosion of its legitimacy, the FISC announced that it would not keep the Verizon order secret and the Obama administration is considering declassifying the document.

Is the concept of judicial independence simply one that is taken for granted because we are told in every civics class growing up that our government is one of checks and balances?  Is it because Chief Justice John Marshall said long ago that the courts are the ones who provide the final review of the laws, placing the stamp of constitutionality on challenged actions?  Perhaps.  Instead, a more plausible explanation is that there is actually a system in place that promotes judicial independence, allowing judges to remain free from the traps of decision-making designed strictly to remain in power.  A key cog in that system is lifetime tenure.

The criticism of the judiciary is highest when judges are seen as fulfilling an activist role, deciding cases based upon personal ideology rather than the Constitution and laws of the land.

In the coming days, unless the Supreme Court avoids directly ruling on (pdf) the high profile issues, the Court will hand down high profile decisions in the Voting Rights Act and DOMA/Prop 8 cases.  These rulings will have vocal critics from whichever side ends up with four, rather than five, supporting justices.  What is likely to be heard from those critics is a cry for the end of lifetime tenure for judges who are seen as “unaccountable” and who have no apparent check on their power.

The criticism of the judiciary is highest when judges are seen as fulfilling an activist role, making decisions based upon personal ideology rather than the Constitution and laws of the land.  Progressives and liberals are those most commonly blamed for being “activist” judges, but with the ever-increasing focus on the judicial branch, any judge can be labeled as an activist.

For example, a Supreme Court Justice recently implied that the court may need to take action to “help” elected officials who are politically paralyzed from acting.  The Justice stated that a specific piece of legislation would very likely “be reenacted in perpetuity” because of the political nature of Congress.  Justice Scalia, who provided this commentary during oral argument in the Shelby v. Holder (pdf) case, would hardly be accused of being an “activist” judge in the typical sense of the word.

Lifetime tenure “is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Regardless of whether you agree with Justice Scalia’s ideology, his observation brings up an interesting aspect of the judicial branch – the nature of its independence.  This independence from the political branches allows the courts to make the hard decisions Justice Scalia referred to because the Constitution provides that federal judges “shall hold their offices during good behavior.”  Or, in other words – lifetime tenure.

Alexander Hamilton expressed a persuasive rationale in favor of lifetime tenure in Federalist Paper No. 78.  Mr. Hamilton stated that lifetime tenure in a republic “is a no less excellent barrier to the encroachments and oppressions of the representative body, and it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”  Contrary to Mr. Hamilton’s words, however, a CBS News/New York Times poll published in June of 2012 found that sixty percent of Americans do not have a positive view towards lifetime tenure.

The primary concern is that a judge will be beholden to someone other than the Constitution.

Hardly any critic has called for a system where federal judges become elected officials like state-level judges, and for good reason.  The existence of reappointment likely provides the greatest threat to the independence of a judge because the primary concern would be that a federal judge is beholden to someone other than the Constitution.

Mr. Hamilton addressed the issue of a temporary appointment being fatal to a federal judge’s independence from the President and Congress in Federalist Paper No. 78, stating that there would be “a danger of an improper complaisance” to the executive or legislative branches and “an unwillingness to hazard the displeasure of either.”  He also addressed a judge’s particular relationship with the American citizenry in Federalist Paper No. 51, where he postulated that a “dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Many critics claim a judge’s ability to serve on the bench for decades is more fitting of a tyranny than a democracy.

While the “problem” of lifetime tenure is one all federal judges are privy to, much of the public criticism is focused towards the Supreme Court.  And while the Supreme Court has a fairly strong favorability rating as compared to the President and Congress, the nine justices provide the most fodder for those seeking to criticize a federal judge’s actions and decisions.  Many critics claim a judge’s ability to serve on the bench for decades is more fitting of a tyranny than a democracy.

A common refrain from critics opposed to continuing lifetime tenure is that the founding fathers could not have anticipated that judges would live to be centenarians while still on the bench.  While this is a fair assumption, the premise is flawed.  In fact, the modern-day longevity of judges is not unprecedented.  Chief Justice John Marshall remains the longest serving Chief Justice of the Supreme Court, having served for over thirty-four years beginning in 1801.

Stuart Taylor, Jr., a journalist and law professor at Stanford Law School, penned an article for The Atlantic in 2005, where he offered a multitude of reasons why lifetime tenure is no longer conceptually the same as was intended by the founding fathers.  Mr. Taylor primarily focused on the Supreme Court, but a number of factors could be applicable to all federal judges, including decrepitude, “intellectual autopilot,” hubristic complacency, eroded legitimacy, and diminished productivity.

A fairly persuasive reason for limiting a federal judge’s tenure would be to lessen the politicization of the judiciary.  Linda Greenhouse, a longtime journalist and lecturer at Yale Law School, proffered this rationale when writing for The New York Times in 2007.  Ms. Greenhouse discussed the politics surrounding judicial appointment, as well as the negative public perception that federal judges choose to retire at a certain time for political reasons, thereby increasing cynicism towards the court.  This perception is more reality than speculation, and even Justice Ruth Bader Ginsburg has acknowledged the political party of the sitting President is a factor in deciding when to retire.

Notwithstanding the fact that lifetime tenure is entrenched in the Constitution, the natural alternative for those seeking to limit a judge’s influence and time on the bench would be to establish an actual end to a judge’s term – other than the judge’s death.

Removal of a judge based on a certain age would be to remove him for an “imaginary danger of a superannuated bench.”

While there are a number of reasons why an end to lifetime tenure might be proposed, two options have been widely discussed for how a federal judge’s tenure could be modified.  The first option is a mandatory retirement age, and the second a finite term of years without the opportunity for reappointment.  Each option provides a known end to a judge’s tenure, but each could have differing effects on the courts.  If the desire is to limit a judge from serving beyond the point where he is likely no longer mentally capable, then a mandatory retirement age is the more preferable option.  If the desire is to limit the length of a judge’s term to decrease power and influence, then a term of years would be the better option.

Mr. Hamilton discussed mandatory retirement in Federalist No. 79, decrying the removal of a judge based on a certain age because it would remove him for an “imaginary danger of a superannuated bench.”  Despite this worry, a mandatory age limit may be appropriate for all levels of the federal judiciary.

The oldest serving judges on senior status were 104 years old at the time of death, and the oldest active judge was ninety-five years old at the time of death.  In comparison, the oldest Supreme Court justice at the time of his leaving the bench was a youthful ninety years old at the time of retirement.  Moreover, according to the Federal Judicial Center’s “Biographical Directory of Federal Judges” Research Categories database, the overwhelming reason for federal judges leaving the bench over the past fifty years has been because of death.  Since 1963, there have been over 900 judges who died while still serving as a judge, compared to less than 150 who permanently retired and ninety-one who resigned.

When considering an appropriate age to mandate a federal judge’s retirement, the senior status “rule of 80” could provide valuable guidance.

Consider also the fact that an age-based quasi-retirement system is already in place in the federal courts.  Both trial and appellate level judges can attain senior status by choosing to semi-retire upon reaching a certain combination of age and years of service.  Senior status does not take away an indefinite tenure, but instead allows a judge to choose if and when to retire, as well as to define the terms of retirement.  In the last fifty years, over 500 federal judges have attained senior status, with more than half of those having occurred in the last ten years.

When considering an appropriate age to mandate a federal judge’s retirement, the senior status “rule of 80” could provide valuable guidance.  This age would not disturb the current practice of senior status, allowing federal judges to serve on senior status for up to fifteen years.  The benefit of this plan is that it would eliminate the possibility of a judge serving well beyond the average American life expectancy (pdf) of seventy-eight years.

Likewise, an approximate age of eighty years has been shown to be when the risks of Alzheimer’s and dementia increase dramatically (pdf).  Nevertheless, a judge over the age of eighty is not guaranteed to experience mental decline, and there have been judges in the past who have experienced mental health issues as early as their fifties.  Regardless of this fact and the worry of age being used as a proxy, the medical advances today can be a valuable tool in determining when, as opposed to if, a judge should retire.

A judge’s experience, rather than potential term length, would become a weightier factor for a President to consider when nominating a candidate to the bench.

A mandatory retirement age is a potential way to limit a federal judge’s tenure, but a finite tenure for a set number of years has received much more support from the legal academy.  The principle arguments behind a set term of years can be found in a proposal from 2009, authored by a group of bipartisan law professors, including Duke University’s Paul Carrington.  The legal academics explored a variety of options and chose eighteen years as the ideal length of a fixed term for Supreme Court justices.  The group posited that their legislative proposal would create more stability in judicial rulings, decrease ideological swings in the judiciary, and remind judges of their own mortality.

One benefit that a term of years, in contrast to mandatory retirement, would provide is that an older judicial candidate still in robust health would stand a likelier chance of being nominated.  The incentive for a President to nominate younger judges would likely decrease because there would no longer be a possibility that the judge could serve on the bench for decades.  For example, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, at age seventy-four, would have almost no chance of being nominated for the Supreme Court if a mandatory retirement age was imposed, despite being generally regarded as one of the greatest legal minds of the day.  A judge’s experience, rather than potential term length, would become a weightier factor for a President to consider when nominating a candidate to the bench.

A set term of eighteen years would also be comparable to the average tenure of federal judges who chose to fully retire rather than attain senior status.  The average length of tenure for the 1,271 federal judges fully retiring between the years of 1945 and 2000 was approximately 18.3 years.  Selecting a fixed term of eighteen years would not only allow for evenly-spaced appointments, but would allow a judge to outlast the political figures nominating and confirming his appointment.  The President, his Vice President, and likely the confirming Senators would all be out of office when a replacement is nominated.  This could guarantee that a federal judge’s seat would not be controlled by the same political figures and would help to minimize the danger of a perceived political patronage.

Plainly put, the filling of judicial vacancies is not a well-oiled machine.

A term of eighteen years may seem like a viable alternative to lifetime tenure, especially when considering the increasing average length of tenure for Supreme Court justices from fifteen to twenty-six years since 1970 (pdf).  But there are a number of reasons why the continuance of lifetime tenure is more preferable.

One of these reasons is that the maximum job security provided by lifetime tenure attracts the most highly qualified individuals.  A judge is removable only for egregious violations leading to impeachment and conviction, which has occurred only four times in the last fifty years.  Mr. Hamilton recognized the need for lifetime tenure to attract the best of the best in Federalist Paper No. 78, when he stated that a failure to utilize life tenure “would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.”  These words ring true even today, and it imperative that highly qualified candidates be enticed to, rather than dissuaded from, an appointment to the bench.

Another cause for concern in establishing a fixed term of years is that it would connote a similarity to elected politicians that simply does not exist.  A federal judge could conceivably be viewed as a “lame duck” towards the end of his term and be unable to preside over matters likely to extend beyond the end of his appointment.  Proper maintenance of the judge’s case load could lessen the likelihood of this situation, but issues could arise if the judge’s replacement is not yet appointed by the end of his or her term.  This is a likely scenario considering the fact that there are in excess of 100 total current vacancies (pdf) in the federal judiciary.  Plainly put, the filling of judicial vacancies is not a well-oiled machine.

“Nothing can contribute so much to the judiciary’s firmness and independence as permanency in office.”

Removing lifetime tenure for federal judges may appear to be a good idea at first blush, but its negative impact on the independence of the judiciary cannot be understated.  Alexander Hamilton theorized that life tenure was the best way to preserve the judiciary’s independence by noting in Federalist No. 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office, [and] this quality may therefore be justly regarded as an indispensable ingredient in its constitution.”

The federal judiciary is designed to be a counterweight to the President and Congress, as well as the pinnacle of a judge’s career.  Jettisoning lifetime tenure from the Constitution would remove one of the few ways in which the judiciary maintains those deep-rooted checks and balances established at the inception of the American government.  Any action that chips away at judicial independence could put the American political system on a road to ruin.  Starting down that road with the removal of lifetime tenure for federal judges may well mean starting at the end.

Adam Steele, Editor-in-Chief Emeritus
About Adam Steele, Editor-in-Chief Emeritus (17 Articles)
Adam Steele served as Editor-in-Chief for the Campbell Law Observer during the 2013-2014 school year. Prior to law school, he attended N.C. State University, where he earned a B.A. in Political Science in 2006. He taught US History at a local high school for a short time before working as a paralegal at Millberg Gordon Stewart PLLC for three years prior to law school. Adam interned in all three branches of the state government, including with the Transportation Section of the N.C. DOJ, the Research Division of the N.C. General Assembly, and with the Honorable Paul C. Ridgeway, Resident Superior Court Judge in Raleigh. Adam spent the summer of 2013 clerking with the Honorable Sanford L. Steelman, Jr., N.C. Court of Appeals and Millberg Gordon Stewart PLLC. Adam spent the majority of his 3L year interning with Red Hat, Inc., and as a research assistant to Dean J. Rich Leonard. He graduated from Campbell Law School in May 2014.
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