A reader writes:
I haven't paid close attention to the debate, but it doesn't appear anyone has mentioned the math of term-limiting Supreme Court justices. Suppose the term limit for a justice were nine years (somewhere near the middle of Sides' suggestion of six, eight, or twelve years). Under such a limit, there would be one forced retirement per year (assuming equal spacing of appointment). Under such a system, Bush's fifth appointment to the Court would have come in 2005; not until 2012 would there be fewer than five Bush-appointed justices.
Really, any term limit under 14 years will guarantee any two-term president the ability to "pack" the court with justices of his or her ideological bent. Now you're facing a problem similar to FDR's: how do you limit the judiciary branch while keeping the branches of government separate? Well, you can't.
I worked as a law clerk for a federal judge for several years, and I saw the wisdom of lifetime tenure play out many times, both with my judge and others. It is indispensable.
The most fervent "liberal" or "conservative" judge sometimes loses his or her nerve when asked to disfigure the Constitution. Not always, to be sure, but plenty often enough to keep us very, very free after two-plus centuries. And although the collective (if it can be called that) mindset of the judiciary changes very slowly, it changes both to the left and the right. No school of thought has a permanent advantage just because the judges have quasi-permanent tenure. Finally, the tenor of federal judicial opinion tends to lag the tenor of political opinion by a decade or so - hence the wave of "liberal" rulings in the fifties and sixties, and the "conservative" outlook that will persist for at least the next ten or so. Ending lifetime tenure would tend to temporally correlate the effects of short-lived ideological trends between the branches - what could be worse for a system designed not to be reduced by occasional quakes, but to withstand them in favor of the persistent small tremor?
For crying out loud; Alexander Hamilton nailed it in Federalist 78 - and he nailed it BEFORE it happened, which I find truly extraordinary.
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