A Call For Term Limits On Judges
Posted on October 17, 2005
The Constitution…is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.” — Thomas Jefferson
Hat tip Kevin Drum
Ron Brownstein wrote a piece in the LA Times today:
“an informal band of prominent legal thinkers from left and right” thinks we should do away with the current system of life tenure for Supreme Court justices because it produces long terms and infrequent vacancies:
Fewer vacancies mean more conflict over those that occur because neither side can be certain when it will receive another chance to change the court.
Longer tenure also raises the stakes in each confirmation by multiplying the effect of each nominee. The common assumption during the recent confirmation debate over new Chief Justice John G. Roberts Jr. was that he would serve at least 30 years.
I agree with Kevin Drum that it is a good idea that will probably never catch on. But should it? Their power has definitely gotten out of control. Consider the fears of one our founding fathers.
The Founding Fathers never meant for federal courts to turn into judicial tyrannies. In fact, in 1788, Alexander Hamilton wrote that “The judiciary is beyond comparison the weakest of the three departments of power.” Most liberals, of course, claim that the courts have judicial supremacy and can overturn laws as well as impose their social agendas at will. This is a myth.
In 1819, Thomas Jefferson, who probably had a fairly good grasp of how our government was to function, said: “If this opinion [of judicial supremacy] be sound, then indeed is our Constitution a complete felo de se [act of suicide].” Yet, today, the federal courts have basically become judicial tyrants, overturning laws passed by state legislatures and Congress and legislating a radical liberal agenda. This is not the proper role of judges. Their role is to interpret laws, not create them. Congress must put an end to this usurpation of power by judges.” Source
To continue with lifetime appointments, there is no way that judicial activism will ever be held accountable. Congress don’t have the guts to impeach a judge over this violation of their proper role. Here is another excerpt from Ron Brownstein.
Justices today, on average, remain on the high court longer and retire at a more advanced age than ever before. Supreme Court justices now routinely serve a quarter-century or more. No justice has retired at an age younger than 75 since 1981 (when Potter Stewart stepped down at 66).
Thomas Jefferson had this fear from the beginning. “The great object of my fear is the Federal Judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”Quote
“It has long been my opinion, and I have never shrunk from its expression,….that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.”
“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy…The Constitution has erected no such single tribunal…knowing that to whatever hands confided, with corruptions of time and party, its members would become despots.”Quote
It is obvious to many on the left and right, that the problem of judicial activism from life appointed judges is real. So what is the suggestion to fix it?
“It is the length of service and influence for a single individual that is scary for a lot of people,” said Richard Davis, a political scientist at Brigham Young University and author of a recent book, “Electing Justice: Fixing the Supreme Court Nomination Process.”
Fixed terms could respond to both of those concerns, their advocates maintain. Restricting service to 18 years would limit the influence of any single justice. And once an 18-year limit was fully phased in, it would assure each president one court appointment every two years, equalizing the appointments’ effect.
Several competing fixed-term proposals have surfaced. Law professors Paul D. Carrington of Duke University and Roger C. Cramton of Cornell University would impose an 18-year term through congressional statute; they maintain they can satisfy the Constitution’s guarantee of life tenure by allowing justices to sit on lower courts after their 18 years on the Supreme Court.
As a matter of fact, Jefferson had a similar suggestion to help prevent judicial activism, and the misuse of power by the judicial branch.
“Let the future appointments of judges be for four or six years and renewable by the President and Senate. This will bring their conduct at regular periods under revision and probation, and may keep them in equipoise between the general and special governments. We have erred in this point by copying England, where certainly it is a good thing to have the judges independent of the King. But we have omitted to copy their caution also, which makes a judge removable on the address of both legislative houses.”Quote
Alas, as I said in the beginning of this article, I highly doubt this idea will get much traction. However, the problem is there and a solution is in dire need. The right is currently divided over Bush’s current pick for Supreme Court Justice, and the confirmation process is always an ugly showdown. Many on the right are saying they wanted someone more conservative in the mold of Scalia. I understand why they want this, because they are concerned with countering the judicial activism of the left. But countering judicial activism with more judicial activism is not the answer. What is needed is for all of the justices to be completely impartial, and strictly do their job, which is to interpret the Constitution. What has to be stopped is the legislating from the bench.
Personally, 18 years is still too long. I rather like Jefferson’s idea of a four year plan, or perhaps even a ten year one where they can retain their jobs after review by bipartisan panels ensuring judicial activism was not practiced by them. In today’s times judges think they can do whatever they want to do. In short, they not only create laws, but they think they are the final law. Congress should start impeaching judges that practice judicial activism. Something needs to put a check on the out of control judicial branch, and term limits just might be exactly what is needed in limiting this all too powerful branch of our government.
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5 Responses to “A Call For Term Limits On Judges”
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The original intent of life time appointments for Justices of the Supreme Court and other federal judges was to remove politics from the influence on the bench. Well I think that we call all agree, that politics is more involved in the justice system than the White House itself.
I agree that it is time that we install term limits for federal judges.
Congressman are elected for 2 year terms with no limits on the number of re-electable terms. Senators are elected to 6 year terms with no limits on the number of re-electable terms. The President is elected to no more than 2 full 4 year terms and can serve no more than 1 day less than 1/2 of a previous President’s term should the need arise to replace a President.
I would propose limiting federal judges to no more than 3 terms of 6 years each. After the expiration of their first 6 years on the bench, they would have to be re-nominated by the sitting President and be re-confirmed by the Senate. Then the process would repeat after their second 6 year term. I think that a maximum 18 years on the bench is more than enough. But that is just me.
Please don’t take Thomas Jefferson out of context ever again. I find this most denigrating. Each of those quotes is in response to Marbury v. Madison.
And insofar as judicial power is concerned I submit another quote from Thomas Jefferson:
“My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal.”
What he means here is that the judicial branch can not act in anything other than the court room. However, as they decide what is legal within their courtrooms it is only natural that they have SOME effect on legislation. Who would pass a law that is not enforceable?
Furthermore, it isn’t a term of “life.” Please get your facts straight.
And finally, the reason for such incredible terms is that it adds to predictability. Predictability has been a tenet of the legal system since Roman times. It is the reason for many terms and concepts such as stare decisis.
Um… ok another non-linking troll.
First off moron, it is a term for life. Article 3 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.”
The article mentions no expiration of terms like Articles 1 and 2 do for the Legislative and Executive Branches (respectively) And this is a fact.
And having a lib lecture on the morality of quoting others out of context reminds me of a platitude. The one about throwing stones in glass houses.
This is your only warning, go away until you are able to bring yourself to comply with the following:
1. Link to your own blog
2. Understand what the heck you are attempting to talk about.
3. Remain respectful
These are Gribbit’s Anti-Troll rules. Jay only has a restriction on profanity. I’m less willing to accept ignorance.
So you define “troll” as anyone who disagrees with anything posted here? Nathan’s post was dissenting but respectful, unlike yours, in which you quickly call him a moron.
Your demands:
1. Link to your own blog
2. Understand what the heck you are attempting to talk about.
3. Remain respectful
Nathan appears to know quite well what he’s talking about, so you can quit harassing him on that score. And maybe he doesn’t have a blog to link to, a possibility that apparently hasn’t crossed your mind. Finally, you’re not at all respectful of his comments. Why not play by your own rules?
No wonder you hate the legal process so much. In your eyes it would be ideal to have the power to just force everyone you disagree with to bend to your will.
Jay, there are no easy, nor simple, solutions to today’s problems in the judiciary. Term limits is one idea, and ought to be debated. I don’t personally like that idea. For what ideas I DO like, take a look here when you get a chance:
http://www.courtzero.org/bgplatform.html