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Debate Club
DEBATE CLUB 2/7/05

Term Limits for Judges?

Norman J. Ornstein and Ward Farnsworth debate.

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Alexander Hamilton called life tenure for federal judges "an excellent barrier to the despotism of the prince" and the principle has guided our judicial system since it was established. Tenure insulates federal judges—above all, Supreme Court justices—from the political ramifications of their actions and allows them to interpret the law without fearing reprisals from the elected branches of government.

However, with all but one justice over 65 and with Senate confirmations to the federal bench increasingly contentious, limited terms for judges might reduce the strife over nominations, loosen the gridlock, and even improve the quality of American law. Should judges be appointed for limited terms?


Norman J. Ornstein is a resident scholar at the American Enterprise Institute. Ward Farnsworth is Professor of Law and Class of 1960 Scholar at the Boston University School of Law.

Ornstein: 2/7/05, 06:43 PM
Lifetime tenure of federal judges has been a given in public discourse; it is taken for granted and rarely discussed. That has been perfectly understandable. Tenure, technically not for a lifetime, but during good behavior, has been with us since the earliest days of the republic, when the framers embedded the concept in Article III, Section 1 of the Constitution. They saw lifetime appointments as a necessary way to insulate judges from the other branches, and as protection against undue influence from outside interests. They also had a more practical concern: They saw a lifetime guaranteed income as a financial incentive that would attract and retain the most skilled and talented lawyers.

So what is the problem here? Why raise this issue now? For me, it starts with the bitterness in Washington over judicial appointments—something that has not receded since the election. If anything, both sides are girding for big battles ahead. The president, in a clear "in your face" gesture to the Democrats, renominated all ten of the federal appeals court judges Democrats found objectionable last year. Upcoming Supreme Court vacancies—there may be several, since we have not had a vacancy to fill in more than a decade—look to be knockdown, dragout partisan battles. If Senate Majority Leader Bill Frist follows through on his direct threats to apply the so-called "nuclear option" and unilaterally change Senate rules to disallow filibusters on judges, Senate Minority Leader Harry Reid will certainly follow through on his own threats to apply massive retaliation.

All this got me thinking about ways to ratchet down the conflict by ratcheting down the stakes. That in turn got me thinking about rethinking lifetime appointments. And the more I thought about them, the more I saw merit in change—in moving federal judgeships, at least a the appeals court and Supreme Court level, to single 15 year terms.

The fact is that lifetime tenure has created a powerful temptation to presidents to pick young ideologues, who can change the balance on the bench and leverage that president's impact for many decades after he leaves office. Lifetime tenure thereby ratchets up the stakes of each appointment, giving opposition parties more incentive to block as many presidential nominees as possible, whatever their ideology, to leave more lifetime slots for a future president of their own party. The financial incentive, of course, is exactly the opposite that it was at the time of the Framers; federal judges receive barely more than the pay of a first-year associate at a blue chip law firm.

If 15-year terms were staggered over time for Supreme Court positions, it would take away the variability that allows some presidents to fill several vacancies in one term, while other occupants of the Oval Office can go two terms without filling any.

Of course, going to 15-year terms would not eliminate rancor over nominations and, in the short term, neither side would see the change as being to their advantage. But the benefit of change seems to me, and to many others, worth the effort.

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Farnsworth: 2/8/05, 09:31 AM
Norm, I'm not convinced the problems you identify are serious, and I doubt that getting rid of life tenure would do much about them. On the first point, the fighting over Bush's nominees may be bitter in tone, but most of them have been confirmed. Judicial vacancies are at their lowest since the Reagan administration. I'll grant that it would be bad to abolish the filibuster, but getting rid of life tenure seems unlikely to help. The biggest reason why Democrats didn't want Miguel Estrada and Janice Brown on the D.C. Circuit was that they would be poised for promotion to the Supreme Court. That worry would remain under your proposal; both still would be well to the right and belong to minority groups, and so would still be scary to Democrats and attractive to Republicans. Democrats oppose others, like Brett Kavanaugh and Priscilla Owen, for political reasons that probably wouldn't change if they were getting terms of 15 or 18 years (I'll explain the "18" later). And I really doubt your plan would have affected their opposition to Charles Pickering. He's already 66 years old.

I may seem to be nitpicking individual nominees, but I think you are going to have trouble finding many cases where it's plausible to think that terms of "only" 15 or 18 years would have done much to reduce the opposition to them. That's still a pretty long time, and the reasons for opposition tend to be deeper than a fear of those extra years beyond the first fifteen.

You also say life tenure has made it too tempting for presidents to nominate young ideologues. Again the strength of the argument depends on the size of the problem, which we shouldn't leave to vague impressions. How often do you imagine Clinton picked a judge he wouldn't have chosen without the temptation of life tenure? How about Bush? Who do you have in mind? I don't think that happens often on the courts of appeals, except when someone is being set up for a possible later appointment to the Supreme Court—and that setting-up process would probably still occur under your proposal.

If anything, your plan would make it easier to put ideologues on the bench, wouldn't it? Their terms would be shorter, so (if you're right) the incentive to oppose them would be reduced and they would be more likely to sail through the Senate. (In effect that's the point of your idea.) What's so great about that? The stakes in the current system put pressure on presidents to nominate moderate judges so as to avoid rancorous opposition. Usually they do, though the few more extreme ones get the attention in the press. All this is okay with me.

I've been focusing on the courts of appeals. Fixed terms at the Supreme Court raise more interesting issues, which I'll get to tomorrow. By the way, though, I think eighteen year terms would make more sense for you than fifteen (though I'm still opposed). It comes out more evenly that way, because there are nine Justices; there would then be two Supreme Court appointments each presidential term. And it would be weird to have 15 year terms in the courts of appeals and 18 in the next tier up.

Ornstein: 2/8/05, 01:31 PM
Ward, I certainly agree that getting rid of life tenure is no panacea. The bitterness over judicial nominations comes primarily from the unusual era of parity between the parties, with partisan control of political power up for grabs every election, and with the growing ideological gulf between the parties in Washington, which has metastasized increasingly around the country. That makes the politics more intense and the stakes higher than they have been. And let's face it—the fact that judges, liberal and conservative, have been more aggressive at injecting themselves into the policy arena with their decisions (often because Congress has passed the buck to them) has also made judicial appointments more significant. But life tenure adds to the stakes, and ratcheting them down a notch would be a good thing—as would preventing any one president from having the tools to dominate the judicial landscape for decades after his or her departure.

But look beyond the immediate issue of bitter partisanship and ideological division. Life tenure does not do what the Framers intended it to do. It has narrowed the pool of the best and brightest available to serve in judicial positions; some young people are reluctant to take a pay cut and give up the chance to build a capital base, while presidents are reluctant to nominate distinguished people in their 60s or 70s when a younger choice will keep a position for decades longer. There is no case to be made, in my judgment, that judicial independence is lessened in any way by a fifteen or eighteen-year appointment than by a lifetime one.

With 15 or 18-year appointments (I am happy to consider the 18-year alternative, and I don't have a problem myself with different terms for different judgeships), younger and older people would be attractive and attracted, especially if one made the salary a lifetime one, to prevent any chance, slim though it may be, of judges altering decisions in their final year to fit future employment opportunities.

Finally, the idea of an 18-year Supreme Court term, ensuring ultimately that each president has two appointments to fill, has great appeal for its fairness and balance. Thanks for that one.

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Farnsworth: 2/9/05, 08:52 AM
Norm, I don't understand how life tenure has, as you claim, narrowed the pool of people willing to become judges. Life tenure is an offer, not a sentence. Judges are free to step down after fifteen years or any other time if they would rather go into private practice. A few do, but most don't, suggesting that they regard life tenure as a benefit of being a judge. Well, of course it is: it's all upside; they can take it or leave it. Indeed, it's your proposal that would make judgeships less attractive to younger lawyers, isn't it? They no longer would be offered the option of a lifetime job; they all would have to worry about what career they would come back to when their fifteen years are over. You might think they wouldn't care since judges aren't paid all that well, but on the evidence of their current behavior it seems that most of them do like staying on the bench.

Your other argument is that older lawyers now get passed over because presidents think they get better returns from young nominees. But again I don't think the facts suggest much of a problem here. As I said before, Pickering is 66. Barrington Parker and Terrence O'Brien, two of Bush's other appellate nominees, were in their late fifties when confirmed. One of Clinton's appointments to the Supreme Court, Ruth Ginsburg, was 60, and the average age of his appellate court nominees was 51 (which is typical). I don't regard that as notably or alarmingly youthful. True, you don't see many people in their late sixties or seventies added to the bench, but I don't see why we should care. It's not as if we have created some sort of crisis in quality by usually picking judges in their forties and fifties. (Do you think there is such a crisis? Where's the evidence?) And anyway I doubt that fifteen-year terms would cause presidents to start appointing those septuagenarians that you want. They still couldn't be expected to serve long enough.

The role of life tenure in keeping judges independent, which you question, connects to a point mentioned earlier: We don't want judges worrying about what their next jobs would be. Think of a lawyer who is made a judge after twenty years of private practice— at the age of, say, 45. Under your plan he would know all along that he will have to find a new job at 60. It probably won't be too hard for him to find something or other; a lot of firms will be glad to have him around, at least "of counsel," though it may be hard to rebuild much of a practice at that point in his life. But suppose he isn't so easily satisfied. He wants a really good job afterwards, or a juicy role in the government. (The latter thought is plausible; a lot of judges and Justices get their jobs through political connections in the first place.) He will need to keep his profile up while he's on the bench. He will need to make rulings that are popular, at least with the political crowd whose favor he hopes to keep. Many would never worry about this, but some would. We avoid all these troubles by telling judges that, if they wish, being a judge is the last job they ever have to worry about. Most of them do so wish.

The best argument for fixed terms is that they would give every president the same number of Supreme Court nominations. But that still isn't good enough. Stay tuned.

Ornstein: 2/9/05, 02:11 PM
Ward, you must be talking to different lawyers and judges than I am. The pay levels do weigh on people. It may be that the miserable conditions inside law firms will be enough incentive for people to give up seven-figure incomes (or the promise thereof) to move to judgeships, but I think that one reason we are getting so many judges coming out of academia is the pay disparity—not that I have anything against academics, but I would prefer my judges to have a broader range of life experiences. Frankly, I would also like to see more judges who have served in elective office, something that was common fifty years ago (see the Warren Court) but not today. If you really believe that top-flight people who are nominated to federal judgeships would be nervous about finding employment after fifteen years on the bench, we can solve that easily—either by having lifetime pay regardless of term, or by applying a very generous pension after the term of service. That also would reduce or eliminate any gaming for future post-judicial jobs. Incidentally, if one looks at Comptrollers-General as an example, there is zero evidence that any of them, with single fifteen-year terms, did anything untoward as they approached the end of their terms in office.

As for the septuagenarians, I am told by current and former White House officials that the age of potential judges, especially of course for the Supreme Court, is a very important consideration in the pre-nomination process. Several strong nominees in their mid-sixties are not going to make it for that reason alone. Given current and future life expectancies, they would not be disqualified or downgraded if there were fifteen or eighteen-year terms.

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Farnsworth: 2/10/05, 08:42 AM
Norm, Norm, Norm—we're supposed to be debating life tenure, and you're off arguing that judges aren't paid enough. Okay, so pay them more. There's no need to abolish life tenure to deal with the problem.

Onward. The best thing about terms of eighteen years is that they would give every president the same number of Supreme Court nominations—two per term. I'll grant that it seems bothersome when some presidents get more nominations than others, but there are considerations on the other side, too. First, the lengths of the Justices' terms determine how fast the Court can be remade by majority will. Under your approach, every two-term president would be guaranteed the ability to largely remake the Court; he would appoint four Justices, which would pretty much amount to a totally new majority when they are put together with one already there from the same party. Well, I don't particularly like that idea. Neither Clinton nor Reagan got to make four appointments, and I'm not sorry in either case; and I'm glad Bush probably won't get to do it, either. I don't want the political gusts that can give a President two terms to have so large an impact on the Court. And no, I wouldn't be consoled if one of those guys made lots of appointments which were then "offset" when lots more were made by one of the others. I like the pace of forced change at the Court kept slower.

Second, your plan would make those two Supreme Court appointments an explicit spoil of every presidential election. This probably would make Supreme Court nominations (even) more subject to pressure and promises during campaigns. It also might make nominees feel more obliged to carry out the wishes of the president who appoints them: After all, he earned those nominations; they didn't fall to him by chance as they now do. Congress might be more deferential to a president's picks for the same reason, resulting in more extremists getting through.

Of course these are just conjectures, but that's part of the point. It's hard to predict with much confidence what the consequences of abolishing life tenure would be—and that makes me nervous about horsing around with a constitutional amendment. If you don't like the lumpy distribution of nominations to presidents, a more measured way to deal with it is for the Senate—including minorities there—to take a vigorous role in the process, and thus force presidents of both parties to play toward the middle regardless of how many nominating chances they get. A nice feature of this approach is that we can try it by degrees and see how it goes. An amendment is more an all-or-nothing thing, and then we'd probably be stuck with it for a very long time.

Ornstein: 2/10/05, 01:20 PM
Of course the reason I raised the pay issue is because you had suggested that life tenure still provided a major incentive, including financially, for lawyers. I don't believe that it does, but if it did in any way, it is easily dealt with via judicial pay. But on to the larger point. The current court reflects presidencies going back to Gerald Ford. From 1975 through 2000, Republican presidents occupied the White House for 14 years, Democrats for 12. In other words, Republicans had the White House 53 percent of the time. Republican-appointed justices represented 78 percent of the Court. Of course, those numbers vary over time, via the luck of the draw. But the luck of the draw can itself skew the court for many years. George Bush may very well end up with four appointments—all in one term. And we can be sure he will pick people who will be able to stay on the court for many decades.

Smoothing out the process will leave two-term presidents with four nominees, but I would rather have that phenomenon, knowing that whatever skew a president put into his nominations could be ameliorated soon enough by his successor(s). With the certainty of two nominations to the Court during a presidential term, the president's preferences or actions could—and should—legitimately be made a campaign issue. I do not believe this is some grand or sweeping experiment likely to be riven with unintended consequences. It is a narrow and incremental reasoned change.

Farnsworth: 2/10/05, 09:20 PM
To start with our subtheme: I didn't say life tenure gives lawyers a financial incentive to become judges. My point was that life tenure—the option of remaining a judge for as long as one wants—is attractive to some judges because they like their jobs. You can't make the job more attractive by taking away that option. You could throw more money at judges to make up for it, of course, but then we're back to the same point: Money, not abolishing life tenure, is the answer to the "problem" you cite of attracting young talent. I repeat my request for evidence that there is much of a problem. Although some lawyers won't take these jobs, plenty of other first-rate ones will, and do.

On our other thread, Rehnquist was appointed by Nixon, not by Ford. So the history adds up a little differently than you say: If we start in 1968 and stop in 2004, the country has spent 24 years under Republican presidents (and counting) and 12 years under Democrats—so using your approach, the Court is only a little too Republican. It should be 6-3, not 7-2. But that's a detail; one always can slice up dates to make an outcome seem more or less balanced.

The more important point is that there are lots of factors that prevent the balance of ideology on the Court from being traceable to a satisfying political pedigree. For one, Justices often are hard to predict. A Republican nominee (Stevens) is now the most liberal member of the Court, and Souter also votes like someone appointed by a Democrat. So the balance between liberals and conservatives on most issues at the Court is 5-4—too liberal if you go by the presidencies we've had. But I'm not inclined to worry much about that anyhow. If we have twelve years of Republican presidents in a row, why is it so important to also have six Republican Supreme Court Justices in a row? Weren't there other people in the country during that time who had different preferences about the Court? Even if the country has elected Republican presidents 2/3 of the time over the past thirty years, it doesn't follow that the country is 2/3 Republican or that the Court should look that way.

The point is that carefully parceling out nominations to presidents doesn't get us Justices who are representative in any very impressive sense. There's a lot of noise in the process, and the random way nominations are assigned to presidents is just another example. It's unfortunate, but in my view probably not worth fixing if giving nominations to presidents as a matter of entitlement (as your plan would) will make it easier for them to push through more—and more extreme—nominees. And I understated matters last time. In addition to his four guaranteed nominations, a two-term president might get an extra pick or two if another Justice doesn't make it through his eighteen years and needs to be replaced, perhaps on an interim basis. So the same president might pick five or six Justices. The more I think about it, the less I like it. Again, I think the place to compensate for the drawbacks of life tenure is in the Senate. If one president gets a big share of nominees, the Senate should keep him in check. The Senate also should feel free to balk if a president offers a young nominee who will serve a term well beyond average. Can we agree on that much—at least so long as life tenure is with us?

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Ornstein: 2/11/05, 12:24 PM
No doubt, life tenure is attractive to some lawyers. And no doubt we will never have a shortage of lawyers (and, I hope on occasion, others, like constitutional scholars in political science, and distinguished public servants who are not lawyers) who will accept federal judicial appointments, including, especially, academics. But having an adequate supply is one thing; having the best and broadest pool is another. The Framers believed that life tenure was the best inducement; I think in this day and age it is not.

Also no doubt, people can be unpredictable, especially those who make it to the Supreme Court. But with the stakes so high in this day and age, and with many Republicans rallying to the cry, "No More Souters!" presidents like George W. Bush are going to be very careful to vet their nominees to find people, more like Scalia and Thomas, whose votes on the Court will be nearly perfectly predictable given past performance. I think ratcheting down the stakes a touch might ratchet down that drive, which is leading us to more rigid views and more polarization on the Court. It is also leading to outside politicization of the appeals courts; witness Newt Gingrich's broadsides against the Ninth Circuit. There is no panacea here, but any little thing we can do to de-ideologize this process would be good.

That brings us, full circle, to your final point. I believe in a strong role for the Senate in advise and consent, particularly for judicial nominations. But we are heading toward institutional breakdown in the Senate with the nuclear option poised to be triggered. We can't change this dynamic in the short run, maybe not for a decade or more. But I return to the reason I first began to focus on the heretical notion of single fifteen-year terms (now, after our dialogue, I'll make it eighteen): It could alter this dangerous dynamic and give us somewhat better balance over the long run, with no serious cost that I can see to doing so. After our very stimulating exchange, I still don't see any serious cost.

Farnsworth: 2/11/05, 02:25 PM
Norm, your last post makes me want to repeat earlier arguments I made, but what fun would that be? Instead let me comment on a couple of interesting arguments that I thought you might make, though you didn't. (If anyone wants to read more about all these issues, by the way, I've written a paper that discusses them in more detail. It's called The Regulation of Turnover on the Supreme Court. That article also contains cites to a literature that argues Norm's position.)

So here are two other advantages of fixed terms, especially at the Supreme Court: They would make it less likely that Justices would keep serving after they become mentally decrepit, since they usually would be forced out before then; and fixed terms would prevent Justices from retiring strategically—i.e., timing their departures so that they can be replaced by presidents they like. I think those are respectable arguments, but I'm not quite persuaded by them for two reasons. The first is that while both of those problems probably do arise once in a while, they appear to be small as a practical matter. The second is that I think they both could be addressed about as well with age limits.

Yes, here I must remove the mask and reveal that I'm not necessarily attached to life tenure. I'm inclined to leave it alone, because I'm not convinced it's causing any serious problems and I think it has some advantages. But I would have no great difficulty with an amendment that forced the Justices off the bench at, say, 75 or 80. This would take care of the mental decrepitude problem just as well as the fixed terms that Norm wants—better, actually, since nothing in Norm's proposal prevents a Justice from serving into his 80s (and remember that he wants more seventy-something nominees!). An age limit also would probably take care of the problem of strategic retirement, since the norm (pardon the expression) would be for Justices to serve until the age limit if they can. The nice thing about an age limit is that it probably wouldn't create the problems that I've raised regarding fixed terms—giving a president more nominations than we really want him to have, or giving nominations to presidents as a matter of entitlement (with whatever that turns out to connote).

In closing, I don't think that replacing life tenure with fixed terms would be a disaster, but it would have some risks. I'm a believer in unintended consequences, so I hold to a pretty strong presumption against amending the Constitution unless it's clear that we will be better off for it; and in this case I don't think the burden of proof has been carried by Norm and the others who make these arguments. Most of the claims about the good that fixed terms would do are speculative, and are offset by equally plausible speculations the other way. Or so I hope to have shown. Thanks for the exchange, Norm.

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