JUDGING THE JUDGES:
An idea whose time has come

By Samuel L. Edwards

While they sought "to establish a more perfect union," the framers of the federal Constitution made no pretense that their work was perfect.  That being so, they provided various means for redressing imbalances, refining imperfections and curbing abuses as the experience of living under the Constitution brought them to light.

The essential powers of government were divided into three branches in which the powers of each were to be limited by the other two and the powers of all ultimately by the people.  The built-in checks on the judiciary included the right of the President to appoint judges with the consent of the Senate, the power of the Congress to limit the jurisdiction of the federal courts in matters not specifically reserved to them, and the impeachment power.  Also included was the process for amending the Constitution.

It is time the Constitution was amended in order to make the judiciary more accountable to the people in whose name and by whose commission they hold office while at the same time enabling judges to retain their independence to the greatest extent that prudence will tolerate.  It is only in this way that an effective curb can be put on a corporate culture in which far too many judges are not content to interpret the law, but rather see themselves obligated to improve on it through decrees from the bench which are essentially legislative in character.

This sort of activism is the essence of "critocracy" - rule by judges.  It breaches the wall erected by the republic's Founders to separate the legislative and judicial spheres and so undermines the principle of popular sovereignty through elected representatives that lies at the very heart of the American constitutional order.

During the debates over the ratification of the Constitution of 1789, critics of the new document (among whom were the likes of Patrick Henry, George Mason, and Thomas Jefferson) raised objections against granting judges life tenure.  They warned that it would reduce judges' accountability to the citizenry on whose fundamental authority they were raised to the bench.  It would lead at length to a judicial despotism that would in the end overthrow government by the people's elected representatives on both the state and federal levels, thus replicating in a different form the very problem that led to the separation of the colonies from Great Britain.

Recent history strongly suggests that these initial anxieties were well-placed and that Alexander Hamilton was seriously mistaken in his expectation (expressed in The Federalist, No. 78) that the judiciary would ever continue as the weakest branch of the federal government:  Indeed, it seems that it now has become the strongest, before which quail the magistrates and representatives elected by the people.

The early critics of the 1789 Constitution deemed the threat of impeachment an insufficient control on judicial grandiosity:  Jefferson referred to it as "scarecrow" and a "bugbear which they fear not at all."  He seems to have been right in this:  The infrequency of the impeachment of judges over the past two centuries is less a testimony to the integrity of the federal judiciary as guardians of the Constitution than it is to the unwillingness of the Congress to use it except in the most egregious cases of moral turpitude.   Never has a judge been impeached for opinions which misrepresent and undermine the meaning of the Constitution.  This cannot have escaped the notice of the occupants of the federal bench.

It is worth noting, as well, that when the Constitution was written, life expectancies were notably shorter than they are today.  It was exceptional if a judge (or anyone else) lived into his seventies or eighties.  In such a time, the absence of a limit on judicial tenure was no great problem, since the Grim Reaper would generally limit it, and with it the potential of the average judge to inflict serious damage on the law.  Now, however, with people regularly living long past their seventh decade of life, a judge appointed to the bench in his fifties may easily be expected to serve for a quarter-century or more.  The scope for his doing lasting damage is concomitantly increased, especially since he is well aware that unless he is notoriously corrupt, he has absolute job security regardless of how outrageous to the Constitution and laws his judicial opinions might be.

Given such considerations, it would be prudent now to limit judicial tenure. This could be done by according to each federal judge and Supreme Court justice a fixed term of office that would be longer than those enjoyed by any elected federal official.  A period of "not less than ten nor more than twelve years" would seem to be about right.  Then, at the biennial general election following the conclusion of the tenth year of the judge's term, he or she would be required to submit to a vote for or against retention in office by the voters who live in the judicial district or circuit over which the judge has jurisdiction.  (In the case of the Supreme Court, of course, the vote would be nationwide.)

If the people voted to retain the judge or justice, he or she would be continued in office for another term.  If, however, they voted not to retain the judge, he or she would be retired and disqualified from appointment to any federal judicial post for a fixed number of years afterward.  The President would then be obliged, with the advice and consent of the Senate, to appoint someone else to the post.

The most predictable objection to such a change is that it would impair the independence of the judiciary.  This objection is less weighty than it seems at first:  As personal responsibility is a necessary accompaniment of liberty, so in a republic official independence must be balanced by meaningful accountability.  The unfettered independence of any branch of government from the other branches or from the people is a threat to republican government.  The Constitution exists in the first place to ensure that no such independence is ever established.

The change proposed here actually would have minimal impact on judicial independence:  While there would no longer be life tenure, judicial tenure would still be for a longer period than that enjoyed by any elected federal official.  In addition, the current provision against the reduction of judges' compensation during their tenure would remain in place.

The appointment of judges would remain in the hands of the President with the advice and consent of the Senate, and the Congress would retain its impeachment authority unimpaired.  The proposed amendment would reinforce the existing checks on judicial power by adding further level of regular accountability to the electorate.

It just may be that the addition of this kind accountability would be one part of a general remedy for the diminishing regard in which the federal courts are held, thanks to decisions that are seen as flatly wrong, or even immoral, by large sectors of the republic's citizenry.  The people realize intuitively the truth what Jefferson expressed when he wrote, "Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps.  [T]o whatever hands confided, with the corruptions of time and party, its members would become despots."  [1820, letter to Jarvis] 

It is time that the people be given a voice in judging their judges.

Fort Washington, Maryland
19 December 2003
 

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Proposed Text of Amendment

ARTICLE ##

Section 1.  The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.  The judges, both of the Supreme and the inferior courts, shall hold their offices during good behavior for a term of not less than ten nor more than twelve years, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.  The term of office for a judge shall be deemed to commence from the date of his qualification for the same.

Section 2.  At the general election for the members of the House of Representatives next after the expiration of his tenth year in office, the name of every judge not resigning shall be submitted to the electorate of the jurisdiction in which he serves for a vote for or against retention in office.  If he be retained, he shall be continued in office for an additional term of not less than ten nor more than twelve years.  If he be not retained, his office shall be vacated three months following the aforesaid general election (unless his term expire prior thereto) and the President, with the advice and consent of the Senate, shall appoint some other person to the office so vacated.

Section 3.  The provisions of this Article shall be applicable to all judges of the courts of the United States in service at the time of its ratification by three-fourths of the legislatures of the several States.  The name of every judge of the courts of the United States in office for more than ten years at the time this Article becomes effective and not resigning shall be submitted to the electorate of the jurisdiction in which he serves for a vote for or against retention in office.

Section 4.  No person failing to be retained as a judge of the courts of the United States shall be eligible for appointment as a judge in any of the courts of the United States for a period of four years after the conclusion of his term in office. No person resigning as a judge of the courts of the United States within two years of the end of his term in office shall be eligible for appointment as a judge in any of the courts of the United States for a period of four years after the date of his resignation, except that this provision shall not apply in cases of judges resigning to assume a position on a higher court of the United States to which they have been appointed by the President and confirmed by the Senate.

Section 5.  The Senate of the United States, within ninety days (Sundays excepted) from the date of its submission to the Senate, shall accord each person nominated by the President of the United States to the office of judge in any of the Courts of the United States a vote consenting or not consenting to said nomination.

Section 6.  The Congress shall have power to enforce the provisions of this Article by appropriate legislation.
 

 

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