Judicial Term Limits

Okay, so this guy, Gary Becker wrote an article on his blog that argues for term limits. I probably wouldn't have taken note but I saw commentary on two different blogs; Powerline and a guest blogger, Brad Plummer, at Washington Monthly. Mr. Plummers argument was weird, so I decided I wanted to point out why I thought so.

Mr. Becker's original article is not very long, so I would encourage you to read the whole thing. The following is the meat of the article:

There is no perfect system for handling these responsibilities of the judiciary, and the lifetime approach worked well enough during earlier times when far fewer issues came before the court, and Justices did not stay on for so long. But the average tenure of a Supreme Court Justice has increased from about 16 years to almost 26 years, and the average age at retirement grew from about 70 years old to 80. The nine present Justices of the Supreme Court have served together for the longest time in America’s history, some 10 years, with the last appointment made in 1994.

Given their desire to influence future Court decisions, presidents are appointing younger Justices who will be able to affect judicial decisions for 40 years or more. Moreover, the prestige and power of a Justice is so great, and the workload so low- a typical Justice writes about one opinion per month, and much of that is usually done by outstanding clerks- that they have little work incentive to retire before death or severe incapacity.

Do we really want 80 year olds, who have been removed from active involvement in other work or activities for decades, and who receive enormous deference, in large measure because of their great power, to be greatly influencing some of the most crucial social, economic, and political issues? My answer is no, and Posner seems to agree, at least for Supreme Court Justices.

There are three main points that I can pick out:

1. Supreme Court Justices used to serve 16 years on average. Now they serve nearly 26 years on average.
2. Presidents want to affect decisions long into the future, so they are appointing younger people to the court.
3. Since they have a lifetime tenure and are serving longer, they can become distanced from the people who are affected by their decisions. Plus, there is no recourse for when they start inflicting their will on the country.

He then backs a proposal for 18 year limit for a justice (although he presents some other permutations).

To me this idea sounds reasonable. By limiting their service, there won't be any pressure to nominate younger, less experienced candidates. I'm assuming that there are more than 9 great judges in the country at any given time, so it really shouldn't matter from a competency standpoint.

So what does our friend Mr. Plumer think is wrong with this plan. (I'll take them point by point.)

The first thing that catches my eye is that, with 18-year terms, any two-term president would have the chance to nominate four Supreme Court judges. (Clinton, by contrast, only got two picks, and Reagan only three.)

To this I say that I'm sorry that they got cheated out of nominating chances. His argument is that possibly getting to nominate four justices is too much power.

I've got to call him on that. When the average length of stay was 16 years, then some presidents must have gotten to name four right? What about before there were term limits on presidents? They would have had the chance to nominate a bunch. Not to mention there is always the chance that ALL the justices decide to retire or die during a single term president's time. Then that single term president would nominate them all and they would serve for a long, long time before anyone else could get to them.

He really seems to prefer the luck of the draw approach that it is now, rather than the steady distribution of choices among different presidents.

[T]he presidential election is way too crude a process to represent the "will of the people". After all, it's the only time the entire nation can get together and vote, collectively, on a national representative, as opposed to a local one. And yet we're voting for a person who a) conducts foreign policy, b) essentially sets the domestic agenda, and c) picks judges. Now there's no way majority preferences can manifest themselves coherently in one single person. Just because the voting public selects three Republican presidents in a row, for instance, doesn't always mean the majority "wants" six conservative judges on the court, which Becker's proposal would entail.

Umm... that is how our system works. The people get together and elect our president and some congresspeople. Then the president nominates justices and the congresspeople give them the ye or nay. That's how it works.

I don't understand his position. If electing three Republican presidents in a row gives them six judicial nominees, then maybe the Dems could win them back by winning three other presidential elections. It would be more like a pendulum.

As it is, we have to live with the "will of the people" from a long time ago.