An activist judiciary has joined the legislative and executive branches in making public policy. The influence of judges has been magnified by their relative immunity from political pressure. Although the courts sometimes follow the election returns, in many cases, such as abortion, judicial decisions have short‐ circuited normal political discourse.
That fact alone makes judicial appointments important. Their significance is increased by life tenure enjoyed by federal judges, particularly Supreme Court justices. Lose the battle over filling a Supreme Court slot and you suffer the consequences for decades.
There are other consequences of lifetime tenure. The appointment process has become ever more arbitrary as judges hang on despite advancing age.
The last justice to retire was Harry A. Blackmun in 1994. He served 24 years. Before 1970, the average term served was a bit over 15 years. Since 1970, justices have averaged 25.5 years. The age at retirement has jumped a decade, to nearly 79. Today, only Clarence Thomas is under the traditional retirement age of 65.
Most Supreme Court members have avoided obvious infirmity. However, William O. Douglas, who served more than 36 years before retiring in 1975, was evidently failing after a stroke. Chief Justice William Howard Taft pressured ailing Associate Justice Joseph McKenna to quit in 1925. Current Chief Justice William Rehnquist is seriously ill with thyroid cancer.
Another concern is that long‐serving justices tend to be less conversant with current culture. Proper constitutional interpretation obviously can survive a lack of familiarity with, say, rap music. More serious, however, is the concern that comfortable patterns of thinking can go unchallenged for years.
The justification for life tenure is most obviously history: It is enshrined in the Constitution. More important, lifetime appointments help insulate the courts from transient political pressures.
Such protection is necessary if judges are to sometimes make unpopular decisions upholding the nation’s fundamental law. And judicial independence is important. Critics of judicial overreaching have proposed a number of steps — limiting court jurisdiction or impeaching errant jurists, for instance — that could be abused.
Still, the judiciary, no less than the executive and legislative branches, must be held accountable. Unreviewable power is always dangerous.
The best means of responding to these concerns is to appoint judges to fixed terms rather than for life. Ten or 12 years would allow extended service while ensuring turnover.
The advantages of such a step would be many. First, judicial nominations no longer would become political Armageddon. Supreme Court appointments would always be important, but there would be less incentive to vilify and filibuster nominees. After all, the new justice would serve only one term. Moreover, term limits would ensure a steady transformation of the court’s membership. An enfeebled justice could not hang on in an attempt to outlast a president. New members at regular intervals would encourage intellectual as well as physical rejuvenation of the court.
Most important, fixed terms would improve judicial accountability. Judges still would be independent, largely insulated from attack. However, elective officials could eventually reassert control without doing violence to the judicial institution. Yet it still would not be easy, and the process would allow time for ephemeral popular passions to subside.
Judicial independence is important, but so is judicial accountability. Appointing Supreme Court justices to fixed terms would balance the two competing principles.