July|August 2005




ALL OVER THE WORLD, JUDGES DECIDE ISSUES that people care about deeply—abortion rights, limits on torture, whether the death penalty applies to juveniles, and who decides when life should end. In the United States, the Bush Administration's determination to nominate controversial individuals for life-tenured judgeships, coupled with the narrow divide in the Senate, has prompted intense battles.

Another, less obvious, reason—the length of time a judge serves—makes each nomination to the federal bench matter so much. Unlike most other constitutional democracies, the United States provides for neither fixed terms for judges nor mandatory retirement at a certain age.

The 50 life-tenured jurists who began their careers on the lower federal courts between 1789 and 1809 served for an average of 16 years. In contrast, the roughly 500 judges who finished their service during the past two decades averaged 24 years on the bench.

What accounts for the increase in years of service? For one, people live longer, judges included. In the early years of the Republic, lower-court judges lived an average of 64 years; today they live on average to 75. Another factor is important, too. Through pension programs, Congress has created incentives for judges to serve as long as they can.

Under current statutes, a judge turning 65 and with a sufficient number of years of service can retire and get an "annuity equal to the salary" received during the last year prior to leaving the bench. Or a judge can decide to take "senior status," which opens a slot for a new appointment. "Going senior" also enables a judge to keep chambers and staff and to continue to receive any raises Congress provides for judges' salaries—so long as he or she does annually an amount of work comparable to that done in three months by an "active" judge.

The option to go senior is attractive because it enables judges to help their colleagues and themselves. The president has a chance to nominate a new person to fill a judgeship, while the number of judges actually working increases so long as a senior judge stays on.

This system provides the country with more judges without Congress having to authorize new judgeships—something that Congress hasn't done for appellate courts since 1990. But the downside is that individuals remain judges for extraordinarily long periods. The system also encourages opportunistic behavior by judges who can time their retirements to give the politician of their choice the chance to fill empty seats with other lifetime appointments.

In addition to the long term of service, life-tenured judges have more and a different kind of power than is commonly perceived. Each district's Article III judges appoint individuals to serve for eight-year renewable terms as magistrate judges. Article III circuit judges appoint each circuit's bankruptcy judges, who have 14-year renewable terms. Today, at the trial level, the number of these "statutory" judges—about 850—is roughly equal to the number of active district court judgeship slots.

These statutory judges are not minor players. They can hold people in contempt of court, and when litigants consent, magistrate judges can preside at civil jury trials. While their powers are not equal to those of their life-tenured colleagues, the trend since the creation of such positions in the 1960s has been toward expanding their authority.

Thus, life-tenured judges do not only serve for longer terms, choose when to depart, and decide the most pressing issues of the day. They also pick many of the other jurists who sit inside their courthouses and who rule on issues such as Social Security, habeas corpus, and how assets are allocated in mass torts when companies go bankrupt.

CARING ABOUT WHO WILL DECIDE CASES is not going to stop, and it should not. But several changes could quiet the battles over each life-tenured appointment. More judgeships, shorter tenures, and less extra-judicial power are the places to start. And one option, rarely discussed but which could have important consequences, is a reform of the judicial pension system.

Changes have to be made based on constitutional structure and values, starting with Article III, which requires that judges serve "during good Behaviour" and that their salaries not be diminished. That insulation was as good an idea when it was written as it is now. Judges are likely to be criticized for decisions that they are obliged to make. In earlier eras, judicial candidates were challenged about whether they supported the expansion of railroads or the growth of unions. Today's shorthand for why judicial independence is important are Schiavo (ending life), Roper (the juvenile death penalty), and Lawrence (consensual sex between adults of the same sex). But protecting the independence of the judiciary does not require unlimited life tenure or a unilateral power to appoint other judges.

Two often-discussed options are to provide for fixed ages of retirement or to provide fixed terms of service for the Supreme Court. Such routes could borrow from abroad. Both Australia and Israel require retirement at 70, and the judges on Germany's constitutional court sit for a 12-year term that cannot be renewed. Similarly, the new International Criminal Court has nine-year, nonrenewable terms for judges. Turning to examples in the United States, Massachusetts, Vermont, and New Hampshire require retirement at age 70.

Almost all the academic proposals have targeted the Supreme Court, where a single vote carries so much weight. But most litigants never get near the Supreme Court, which decides fewer than 100 cases a year. Rather, lower court judges are the functional endpoint for most cases, with appellate courts deciding about 60,000 appeals, trial courts receiving more than 300,000 civil and criminal cases, and bankruptcy courts seeing more than a million filings annually.

A third option, changing the incentives for retirement, could be readily fashioned to apply at all levels of the life-tenured federal judiciary. Instead of the current system, which encourages individuals to stay for longer periods of time, Congress could rewrite the retirement pension programs for federal judges to prompt resignation after a fixed number of years.

For example, pension benefits could significantly increase for those judges who serve no longer than 15 years. To take into account that a judge ought not to abandon a case midstream, Congress could provide that a judge who steps down within a year of the 15-year mark or retains at most no more than 10 percent of a docket would receive a one-time monetary bonus (benchmarked to some percentage of a year's salary) and would receive as an annuity an amount pegged to current judges' salaries. Alternatively, Congress could provide that the amount of an annuity would decline by a fixed percent for each year after 15 that a judge stays in office. Universities, populated by life-tenured professors and also eager for turnover, have shaped comparable programs of bonuses to prompt retirements that open up new slots for younger professors.

A good legislative process would consider sensible variations, ask economists to model options, attend to judges' financial needs (given that their salaries are low compared with some sectors of the legal community), and shape a system to prompt a steady rate of departures after a fixed interval. Some judges, because of their independent wealth, might be immune to such incentives. For them, a shift in expectations about the appropriate length of judicial service would likely prompt departures as well.

Would such suggestions pass constitutional muster? As long as they applied to newly appointed rather than currently sitting judges, the proposals could not be understood as unconstitutionally diminishing jurists' salaries. As to Article III's protection that judges hold their offices "during good Behaviour," the issue is how to interpret those words.

As the discussion above about magistrate and bankruptcy judges illustrates, during the 20th century the federal courts have been open to reading Article III functionally to permit invention of new institutions and actors to serve as federal adjudicators. Despite the text of Article III, which specifies one route to a federal judgeship through nomination by the president and advice and consent of the Senate, the Supreme Court has permitted the devolution of a great deal of federal judicial power to magistrate and bankruptcy judges, as well as to administrative law judges. Similarly, despite arguments that the sole permissible constitutional sanction against a life-tenured judge was impeachment, the courts have upheld a 1980 statute providing for judicial discipline through internal disciplinary measures.

In light of the flexible approach to Article III that the Supreme Court has taken and the history in some states that the rule of "good behaviour" permits mandatory retirement ages, federal statutes requiring mandatory retirement or fixed terms on a particular bench or new kinds of pensions should be upheld. But an easier route would be a revised pension system, for it would rely on volunteers and would invite fewer and more easily answered constitutional objections.

What would happen if judges were offered and took their new golden parachutes? We would need more judgeship slots, since we now rely extensively on senior judges, who are estimated to compose about 40 percent of the federal judiciary and to work on between 15 and 30 percent of its cases. A responsible (rather than a judge-bashing) Congress, committed to giving the third branch of government the resources it needs to check and balance, would have to couple pension reform and the authorization of more life-tenured judgeships.

These judges would have life tenure, as they should. Democracy needs judges to make brave and powerful decisions, free from fear of being fired. But inherent in adjudication is a self-limiting constraint. New cases, decided by new judges, permit rulings of earlier eras either to be reconfirmed or revised.