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Announcements

Article submissions are now open for the Journal! Deadline: December 19!

A Recommendation for Eliminating Lifetime Tenure for Federal Judges

By: Adam D. Smith

 

Abstract:

Federal judges arbitrate a wide array of cases and wield considerable power, so it goes without saying that their ability to do their jobs is crucial to the functioning of our entire legal system. Yet there exists no system in place to ensure a federal judge is able to fulfill his or her duties, leaving our legal system susceptible to judges’ ineptitude, senility, and partiality. This paper utilizes a variety of sources and data to argue, for several reasons, why lifetime appointments should not be given to federal judges. Instead, a constitutional amendment should be passed that limits a federal judge’s term to a set number of years, after which the judge would have to be reconfirmed by the Senate in order to continue serving in office. This solution would address the very real problems of dementia and accountability in the federal judiciary, ensuring that our legal system reflects the values it claims to uphold.

  Author Biography:

Adam Smith is a sophomore at Amherst College, studying Biochemistry and Biophysics. Prior to studying at Amherst, he attended Hinsdale Central High School in his hometown of Hinsdale, Illinois. He has always been interested in politics and the law, and plans to attend law school after college to further that interest. In Adam’s free time he rows for Amherst’s varsity crew team and has a passion for the history and culture of the ancient near east.

In the United States today, federal judges wield enormous power. With duties ranging from sentencing convicted criminals to resolving disagreements between states, the federal court system has jurisdiction over some of the nation’s most important adversarial disputes. Once federal judges are appointed by the President and confirmed by Congress, they may hold their offices during what Article III, Section I of the Constitution refers to as “good Behaviour”. This means that federal judges must only step down if they are impeached. While the drafters of the constitution may have had good intentions when granting federal judges lifetime appointments, at present it presents fundamental problems. The increasing life expectancy of federal judges in recent years and the relative immunity of their positions raise questions about the relative merits of lifetime tenure. In order to solve these problems, lifetime tenure should be abolished in favor of a more meritocratic system to be overseen by Congress.

Recently, the increasing age of federal justices has become a particular problem. According to the Federal Judiciary Committee, the average age of appointment for a district judge in 1789 was 47.3.[i] Between 1970 and 2009, the average age was 49.6.[ii] Even though the age of appointment has stayed relatively constant over the past two centuries, the longevity of federal judges has greatly increased. Carl Bialik of the Wall Street Journal notes that when the Good Behaviour Clause was enacted in 1789, the average life expectancy in the United States for a fifty-year old male was sixty-five years of age.[iii] The average tenure for a federal judge in 2013, however, was over twenty-eight years, meaning that many judges hear cases well into their seventies and beyond (ages far beyond what the founding fathers had anticipated when they advocated lifetime appointments to the federal judiciary).[iv] Joseph Goldstein of ProPublica noted that federal judges, on average, die within one year of retirement.[v] If true, this may indicate that the voluntary retirement of federal judges is unduly prolonged. We cannot overlook the fact that it becomes increasingly difficult to dispense justice as cases become more and more technologically complicated. For example, many patents today revolve around the computer industry. As cases regarding the possible infringement of these patents involve technical components that are increasingly complex, it becomes difficult for an elderly judge not well versed in the workings of such technologies to make effective and fair legal decisions.[vi]

We must also realize that as judges continue to serve into their later years, the threat of Alzheimer’s disease and dementia becomes reality. There are currently ten federal judges over the age of ninety[vii]; the eleventh recently passed away at the age of 104. Dr. Claudia Kawas, Professor of Neurology at the University of California at Irvine, estimates that nearly forty percent of people aged ninety and over are currently afflicted with some form of dementia.[viii] Linda Thrasybule, a writer for MyHealthNewsDaily, claims that mental sharpness can begin declining as early as age forty-five.[ix] Because a federal judge has such control over the lives and wellbeing of litigants, the ramifications of dementia are great indeed. Goldstein, referring to an eighty-five-year old federal judge, said his forgetfulness got in the way of a racketeering conspiracy and murder trial in 2007. The prosecutor referred to the suspect as “the key into that apartment,” because he conceivably helped the murderers get past the front door. “In [the judge’s] mind, the metaphorical key became a literal key. He announced that the suspect had given [the murderers] ‘a key to get into that apartment,’ and seemed unperturbed when the prosecutor explained there was no such evidence”.[x] Similarly, in August of 2006, another elderly judge forgot to offer a convicted felon the chance to ask for mercy, a basic right entitled to him in the Federal Rules of Criminal Procedure.[xi] The judge’s error resulted in the case being retried with a different judge, which risked the already convicted felon being found not guilty, and being released.

The likelihood of a federal judge becoming mentally impaired is more common than one might think. Judge Marshall F. McComb was stripped of his docket in 1977 after his peers determined he had contracted senile dementia.[xii] More recently, Justice Karen J. Williams gave up her seat as Chief Justice of the 4th Circuit Court of Appeals after being diagnosed with early-onset Alzheimer’s disease.[xiii] But while there are judges like Williams who are willing to step down if they become impaired, others are not so willing. According to the Supreme Court Historical Society, Justice William Douglas suffered a crippling stroke in 1974, during his thirty-fifth year on the bench. While eventually persuaded to retire by his peers, Justice Douglas continued to attempt to serve on the court until Chief Justice Burger barred Douglas’ former clerks from assisting him, and the other justices signed a formal letter informing Douglas that his court responsibilities were over.[xiv] The only option to formally remove Justice Douglas from the bench would have been to impeach him, though the difficulty associated with successfully impeaching a government official was what prompted the insistence of the other justices that he step down.

Federal judges are held accountable by Congress, but it is extremely difficult to impeach a judge, and even more difficult to convict and remove one from office. The Federal Judicial Center states that out of the 3,514 federal judges in United States history, only fifteen have been impeached, with eight of those fifteen being convicted and removed from office.[xv] A majority vote in the House of Representatives is necessary to bring an impeachment case before the Senate, which then must secure a two-thirds supermajority in order to remove the official from office. Because a federal judge can only be removed from office against his will via impeachment, and the difficulty of securing the impeachment, a federal judge effectively operates freely, without accountability to anyone.

A federal judgeship is the only lifetime-appointed position in the United States where impeachment is the sole ground for removal from office. Even tenured federal employees are ultimately responsible to a superior who has the power to discharge them, provided just cause can be established. Although it is considerably more difficult to discharge a tenured employee than a non-tenured one, neither can truly compare to impeachment. The investigation of several Reagan Administration officials following the Iran-Contra Affair cost over $47,000,000, with subsequent impeachment hearings that carried on for months. Probes into the Clinton Administration concerning the Whitewater and Lewinsky scandals cost nearly $80,000,000, with the impeachment proceedings taking a similar amount of time.[xvi] The high cost and long duration of an impeachment make it extremely difficult for a federal judge to actually be removed from office. In order to increase accountability, there must be other, more viable methods to force a judge to step down.

Those who favor appointing a federal judge to a position for life argue that doing so eliminates the possibility that the judge will become tied to party politics. They claim that because the position is relatively secure, the judge would fear no repercussions from an unpopular decision. But our constitution implies that the opposite is true. The United States is a nation run on the principles of limited authoritarian power, where each branch of the government is checked and balanced by another and, more importantly, by the people. It is exactly this fear of repercussion that encourages our leaders to act ethically, in accordance with the law. When this fear of repercussion is removed, and the leader is no longer accountable to the public, that official is no longer as restrained from acting in his own self-interest, or in the interests of selected others. In the case of a federal judge, one would hope that the court’s rulings would uphold the rule of law and reflect impartiality and fairness. However with a lifetime appointment this is far from guaranteed.

Appointing federal judges to their offices for life also allows the possibility of a partisan judiciary. Because a judge’s political leanings often determine how he or she will interpret a given law, policymakers have long had the incentive to appoint and confirm judges who agree with their views. Let us consider a hypothetical judiciary composed of mainly elderly judges, between the ages of eighty and ninety. Party X wins the presidential and congressional elections for two four-year periods, during which the majority of the then-current judges die. Party X then has an opportunity to fill the vacant positions with younger judges who are sympathetic to their political platform. When the public’s disposition changes and Party Y emerges victorious, they are now stymied by a judiciary that does not accurately represent the public, perhaps for as long as 40 years or more.

A similar situation occurred in the United States after the 1992 presidential election. For twenty out of twenty-four years, between 1969 and 1993, republican presidents headed the United States. While in office, Ronald Reagan and George H. W. Bush alone appointed 552 federal judges to lifetime positions, out of the total of 914 federal judges when Bush left office. When Clinton assumed office in January of 1993, he inherited a judiciary that didn’t accurately reflect the ideals of the American public; the Republican Party only garnered 37.5%[xvii] of the popular vote in the presidential election, but 73.5% of the then-sitting federal judges had been appointed by Republican presidents.[xviii]

There exist several alternatives to life appointments for federal judges, all of which solve certain problems but none of which solve them all without creating other concerns. Some have suggested a limit on the number of years a judge can spend on the bench. This would help rectify some of the problems cited above, but that solution alone does not address the problem of dementia, as it does not limit the age at which judges could begin their term. Others think that we should adopt policies that countries like Canada and Great Britain have already enacted, which force judges to retire at a specific age: seventy-five in Canada and seventy in Great Britain.[xix] But this solution disregards the fact that many elderly citizens are not demented; there are certainly ninety-year olds who exist today that are more lucid that some sixty-year olds, and possess wisdom and experience crucial to their profession.

A reasonable solution is to implement a merit-based system. If the tenure of a federal judge were to be measured in four- or eight-year terms, for example, Congress could have the opportunity to deny the judge a renewed position at a later date, if the judge’s mental clarity or decision-making skills ever came into question. Additionally, this system would make judges more accountable to Congress resulting in more objective decision-making. Since a majority vote is required to confirm a presidential appointment to the federal judiciary, some might argue that Congress could simply fail to reappoint any federal judge whose decisions do not align with the platform of the party in power. This fear is unfounded, as it is apparent that party politics rarely stymie appointments of federal judges. Even today, with one of the most politically polarized legislatures in recent history, over half of President Obama’s appellate nominations have been confirmed unanimously by the Senate. Furthermore, only eight of the President’s more than 200 district court nominations have failed to be confirmed.[xx]

A constitutional amendment would be required to change the tenure of a federal judge to a limited number of years because the Good Behaviour Clause is embedded in the Constitution. Unfortunately, constitutional amendments are difficult to pass. To begin, a two-thirds supermajority in both the Senate and the House of Representatives is required to bring the potential amendment before the states. Three-fourths of the states would then have to ratify the amendment in order to sign the bill into law. A similar idea to the one described above was conceived by Senator Sam Nunn of Georgia in 1977, and called the Judicial Tenure Act. But despite its nonpartisan nature,[xxi] it failed to achieve the required two-thirds supermajority in Congress.[xxii] If it gains more public support, however, elected officials will become aware of this issue and passage of a future amendment could become a reality.

The practice of giving lifelong appointments to federal judges may well harm the judicial system it claims to protect. The current policy allows for the possibility of judges becoming mentally impaired and unable to effectively administer the law. Even if the threat of dementia is not imminent for an elderly judge, the increasing complexity of technology around which many cases revolve can make it difficult for that judge to decide cases fairly and justly. Additionally, the fact that impeachment constitutes the only check and balance on the federal judiciary decreases judges’ accountability, allowing them the opportunity to act in accordance with their personal beliefs rather than the rule of law. In order to best address this problem, a Constitutional amendment should be passed that limits a federal judge’s appointment to a specific number of years, at which point Congress could either reinstate the judge, or allow the judge’s tenure to expire. This way, judges would be more directly accountable for their conduct and decisions, and any that prove to be inadequate could be removed from their position. Limiting a federal judge’s term to a specific number of years keeps with the idea of a competent, incisive judiciary that the founders envisioned, and safeguards America’s judicial branch against the threats of ineptitude and partisanship.

 

[i] “Biographical Directory of Federal Judges,” History of the Federal Judiciary, Federal Judicial Center, n.d. Web. Last visited July 9, 2014).

[ii]Burbank, Stephen, S. Plager and Gregory Ablavsky, “Leaving the Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices and Their Consequences,” Faculty Scholarship, (2012) Web. (Last visited July 7, 2014).

[iii] Bialik, Carl, “Lifespan Math,” The Wall Street Journal Online, (2013) Web. (Last visited July 7, 2014).

[iv] Biographical Directory of Federal Judges, supra note 1, at 1.

[v] Goldstein, Joseph, “Life Tenure for Federal Judges Raises Issues of Senility, Dementia,” ProPublica, (2011) Web. (Last visited July 7, 2014).

[vi] “Public Knowledge about Science & Technology,” National Science Foundation, (2004) Web. (Last visited July 8, 2014).

[vii] Biographical Directory of Federal Judges, supra note 1, at 1.

[viii] Schwarcz, Joseph, “The ninety+ Study,” McGill University, (2014) Web. (Last visited July 7, 2014).

[ix] Thrasybule, Linda, “Mental Decline Can Begin as Early as Forty-Five, Study Finds,” National Broadcasting Corporation, (2012) Web. (Last visited Jul 7, 2014).

[x] Goldstein, supra note 4, at 1.

[xi] Goldstein, supra note 4, at 1.

[xii] Biographical Directory of Federal Judges, supra note 1.

[xiii] Biographical Directory of Federal Judges, supra note 1.

[xiv] Woodward, Bob and Scott Armstrong, “The Brethren,” Simon & Schuster, (2011) Print.

[xv] Biographical Directory of Federal Judges, supra note 1.

[xvi] “Independent probes of the Clinton Administration cost nearly $80 million,” CNN Online, (1999) Web. (Last visited July 15, 2014).

[xvii] Leip, David, “Atlas of U.S. Presidential Elections,” http://www.uselectionatlas.org (Last visited Aug 6, 2014).

[xviii] Biographical Directory of Federal Judges, supra note 1.

[xix] Pannick, David, “Seventy is far too early for a supreme court judge to retire,” Times Online, (2009) Web. (Last visited July 9, 2014).

[xx] Biographical Directory of Federal Judges, supra note 1.

[xxi] “Pro and Con: Should Federal Judges Continue to Receive Lifetime Appointments?,” The Tuscaloosa News, (1977) Print.

[xxii]Fishburn, C. Randolph, Constitutional Judicial Tenure Legislation? The Words May Be New, But the Song Sounds the Same, 8 HASTINGS CONST. L. QRTLY, 851.

 

Comments
One Response to “A Recommendation for Eliminating Lifetime Tenure for Federal Judges”
  1. dan says:

    Very well written. However, I think you will find very little support for this excellent position. The foxes are in charge of the hen-house. Joining the ranks of lawyers just makes you another fox. There are some good and noble judges, that’s for certain. The ones I have run into that are not, have nothing to fear. Even the good ones know there’s nothing they can do about it. Unless some sort of “internal affairs” unit is created, this will be a problem we will all have to live with. Until our society comes crashing down, of course. But hey, renewal is the way of things.

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