Friday, January 14, 2005

A judicial solution in search of a problem

According to USA Today, life tenure for federal judges is a problem. The nature and extent of the problem is a bit hazy, but the rationale for the complaint rests on the longevity achieved by modern American (including judges): "The reason is clear. Justices, like everyone else, are living longer. That makes life tenure a far weightier proposition than when the framers included it in the Constitution. The average age of today's justices is 70. The justices who have left the court in the past 35 years served an average of 25 years before retiring. By contrast, the justices who departed in the early years of the republic served an average of eight years."
"Legal scholars" have also complained that the justices of the Supreme Court serve too long. This is so because of life tenure granted by Article III of the U.S. Constitution, according to Section 1 of which extends "during good Behaviour," and not for a stated term:
"Serving 25 years or more is too long in a democracy," says Steven Calabresi of Northwestern University. Law professors Roger Cramton of Cornell and Paul Carrington of Duke also point out that none of the constitutions that have been written for nations worldwide in the past 150 years has given life tenure to top judges. Another argument they make is that supersize life tenure has raised the stakes of each appointment and made Senate confirmation more contentious."
What, one wonders, did the Framers think about all of this? In Federalist 79, the author states that the compensation provision of Article III was intended to assure independence for federal judges:
"This .e., the provision for no reduction in compensation], all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate."
"Half a century." Hmmm. Looks like the Framers thought that federal judges might actually live and serve for quite a long time. The argument that we should adjust for longer lifespans, then, is not particularly convincing.
Mr. Calabresi's fiat, that "[s]erving 25 years or more is too long," is not quite redolent of facts and argument, dontcha think? Why, for example, does Mr. Calabresi not criticize Senators who serve so long? Or Representatives? [For all I know, he might have. The article doesn't say.] But this argument, turned on its head, would never be accepted. That is, if one were to assert that only "mature" people -- say those attaining the age of fifty --could serve on the Supreme Court, surely there would be an outcry. And why is 25 year bad but not 20? Or nineteen and an half?
As the Federalist authors note, federal judges may be impeached for misbehaving. And why, if a judge isn't misbehaving, should anyone want to get rid of him?
Mr. Calabresi's other arguments deserve short shrift. He claims that other countries have done things differently. Answer: So what? Shall we model our government on the failures in Europe or the failures in Asia? America is the world's oldest democracy (I think). It got that prestige using Article III judges, not Calabresian ones. Mr. C. also thinks that life tenure has "raised the stakes" in Senate confirmations. Talk about blaming the victims!
All in all, McPaper has met its mediocre standards with this article, advocating a mediocre idea with mediocre arguments and mediocre sources.


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