COMMENTARY: Keep life tenure for all federal court jurists

In the midst of the controversy over when to fill the U.S. Supreme Court vacancy caused by the untimely death of Associate Justice Antonin Scalia, the venerable Washington Post surprised many with an editorial [“Rethink life tenure,” Feb. 22] calling for removing life tenure for Supreme Court justices in favor of a finite term. To say the least, that is an overreaction to the partisan nature of contemporary judicial nominations.

Maybe the Post has a point in asserting that justices’ life tenure and recent nomination battles are connected. But so is the fact that members of Congress have perpetual re-election capability, mirroring life tenure, and presidents are limited to two elected terms in since ratification of the 22nd Amendment. The dynamics of recent nomination fights have unfairly put the chief executive on the defensive. The Senate’s constitutional duty to advise and consent in this area does not mean obstruct and delay.

Dr. Samuel B. Hoff

Dr. Samuel B. Hoff

American judicial independence at the federal level is both bolstered and protected by the “good behavior” provision in Article III of the Constitution. Contrary to a majority of European judges and many U.S. state judges who face mandatory retirement at age 70, Supreme Court justices and lower federal court jurists are able to focus on the long term rather than the myopic present.

One fallacious argument made by those wanting to delay the appointment of a Supreme Court justice until the next president takes office in January is that there is little precedent for last-year-of-term nominations, such as that made by President Obama. Poppycock.

A close examination of all 112 Supreme Court justices who have served in that body over its history reveals that fully 20 successful appointments occurred in the final year of a president’s term, including nine such cases since the beginning of the 20th century. Just as American citizens expect members of Congress to do their jobs until the end of their terms, so, too, do we evaluate the chief executive based on the entire term in office, not just the first three years.

The views of the Framers on the nature of life tenure are quite relevant here. The most eloquent defender for life tenure for federal court jurists was Alexander Hamilton, whose writings in The Federalist Papers explaining the benefits of the Constitution focused in part on the courts.

Of course, there is a reason for Hamilton’s views: he was a resident of New York, where, in the 1780s, members of the high court and the state governor shared the power to veto bills and where the legislature dominated both of the other branches. For Hamilton, life tenure for federal jurists would prevent encroachments by Congress, which was considered by all the strongest branch at the outset of our constitutional government.

Conversely, Hamilton reminded critics of Article III that Congress still possesses the ability to create and abolish lower federal courts, to impeach, to set court jurisdictional boundaries, to declare the punishment for treason, and to pass laws impacting all courts at the national level.

One clear example of the latter power is the Judiciary Act of 1789, which, among other features, established the number of Supreme Court judges. Still, Hamilton viewed “good behavior” for federal jurists as a vehicle for ensuring steady and impartial administration of laws, versus Congress’ proclivity to portray the passions of the moment.

In contrast to those supporting the Constitution as it was being ratified by states following the 1787 convention, the Framers who were labeled Anti-Federalists worried that the new government imbued the courts with too much power, a criticism employed by those currently wanting to delay the appointment of the 113th justice to the U.S. Supreme Court.

But the aforementioned group’s concern that the federal courts would abolish state courts never materialized. Further, the Anti-Federalist lament that there is no power above the Supreme Court if errors are made is itself erroneous, for the Article VI supremacy clause reminds us that the national government will not win disputes with other levels of government if it is violating the Constitution by its actions.

As Hamilton and others have observed, creating the national courts as a separate branch ensures the liberty of the people. Once the Supreme Court employed its judicial review authority, the national courts began the path of becoming an equal branch, one that is still subject to scrutiny. But it doesn’t take a political scientist to correctly identify the branch whose personnel routinely achieve the highest ratings of public approval. The Anti-Federalist fear of incompetence at the national level was certainly prescient, although that is a complaint aimed much more at the executive and legislative branch representatives than the courts, currently.

Ever since the Senate delayed President George Washington’s first treaty request, chief executives have been frustrated with delays by the legislature. While that is somewhat expected with Supreme Court nominations, the average time for Senate action culminating in successful appointment to that body is 30 days. We can never take partisanship out of the process, but neither should we forgo a primary, basic, fundamental feature of federal court respect and authority in life tenure.

The Senate has every right to deny a Supreme Court nominee by vote, just as a president may choose to withdraw a nomination, and in all, 28 nominees have been rejected through those methods. However, withholding consent indefinitely in hopes of having a member of their own party elected chief executive is not constitutional authority that the majority party in the Senate possesses or should get away with. As the saying goes, justice delayed is justice denied.

In response to the current quandary, the president could revise his Supreme Court nomination of Merrick Garland to a recess appointment, sue Congress for redress, or try to bypass the legislature by appealing to the public. Doing nothing is not an option due to the bad precedent it would set and because of the backlog of cases confronting the high court. Similarly, amending the Constitution by reducing the term length of federal judges and justices is neither needed nor wanted.

EDITOR’S NOTE: Dr. Samuel B. Hoff is George Washington Distinguished Professor of History and Political Science, and Law Studies director, at Delaware State University. He has taught and published extensively on constitutional-law issues.

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