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I am not, as a general matter, a fan of term limits for political offices. I was opposed to the various proposals for legislative term limits when that issue was hot in the 1990s, even recognizing the recent scholarship showing that the voters really don't hold legislators accountable for unpopular policies or poor performance. I have never known a world without executive term limits, although my sense is that the typical 8-year imposed limit reflects the realistic lifespan of most executives, making formal limits less necessary.

But I am warming to the conclusion that judicial term limits may be appropriate--indeed the only appropriate solution to the question of judicial retention and tenure. If the judiciary is unique among  political offices, then term limits may be uniquely appropriate as to judges but not other political office holders.

Right now, we have two basic approaches, although with some gradations in between. At one end is life/good behavior tenure. perhaps limited in some state by a mandatory retirement age. At the other end is some form of election-based process (whether through direct contested election processes,  the "Missouri Plan" of merit selection and retention election, or simple executive appointment and retention election). Accepting (as I do) that we want judges immune from popular and electoral pressure, particularly in constitutional cases, any form of election becomes unacceptable. What happened in Iowa in October is not a good thing in a constitutional democracy. And that is so even if judges are retained in the overwhelming majority of situations and even if such mass non-retention is extraordinarily rare and requires large amounts of money and a uniquely polarizing (pathological?) decision or event. And while Ian's proposal (a supermajority vote for non-retention) is an interesting one, it is susceptible to the argument levied against Article V--it makes popular constitutional change not only difficult, but virtually impossible. My preference instead is to do away with all elections--indeed with any retention processes in which a judge can be subject to removal because the public and/or popular branches of government disagree with some decisions.

But many people have soured on life tenure (if they ever supported it in the first place). As many others have argued, increased life spans, the professionalization of the American judiciary, the increased power that comes with robust judicial review, and the relative ease of the job together make life tenure just that, with 30+-year terms increasingly the norm. Plus, modern academics are more aware of political entrenchment and its harmful effects. And that is before we get into concerns about incompetent judges (in the sense of being bad at the task of judging) and judges who, because of age or infirmity, no longer are physically or mentally capable of doing the job. And I do not even discuss "judicial abuse," which is impossible to define and usually in the eye of the beholder.

So that leaves some system of term limits as the only way to ensure the necessary judicial autonomy and independence without sacrificing all accountability. I am not suggesting anything new, obviously--this is the cornerstone of the proposal to reform SCOTUS. I am slowly coming around to that term-limits proposal, although I continue to wonder what we should do about lower-court judges (especially on the court of appeals) who arguably exercise greater power than the justices and who are not accounted for in reform proposals. The recent events in Iowa have brought me to the view that something similar is necessary at the state level--although again, we have to consider whether to treat judges on the highest courts different from judges on lower courts and what the precise details should be.

I agree with some of the commenters to Ian's post that judicial selection (in the sense of initial selection to a vacant judgeship) is a political (and even partisan) process; that is not going to change. But initial selection is beside the point; for purposes of judicial independence and autonomy, the real issue is retention. The point is to take politics and partisanship out of retention and tenure, thereby leaving judges (once on the bench) free  exercise their independent judgment with "that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty."  Judges should not be subject to any retention mechanism in which popular disapproval of a decision (especially a constitutional decision) can be, even silently, a basis for removal. Term limits provide judges the additional security of knowing they will maintain and exercise that independent spirit for a definite and defined period of time.

 

 

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