As the Supreme Court ponders the recent oral arguments in King v. Burwell, the national discussion of Obamacare will continue to be heated. This discussion will shift from various opinions to what should be the result of the case. The most worrisome of these points will be made by people discussing the politics of the justices, rather than case’s merits. With this in mind, we must ask if the time has come to rethink lifetime appointments to the federal judiciary.
The favorite argument for lifetime appointments tends to begin with looking to Federalist No. 78 and quoting Alexander Hamilton:
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovation in the government, and serious oppressions of the minor party in the community.
There are, however, a couple of points that should be noted here. First is that Hamilton had supported, just the year earlier, lifetime tenures for both senators and the president—which he termed “[t]he supreme Executive authority of the United States to be vested in a Governour” before the name “president” had been decided. It is clear that Hamilton had a bias towards lifetime appointments for the most powerful offices.
Second, and also in Federalist No. 78, Hamilton stated, “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Today we know this to be plainly false. Had the Supreme Court decided District of Columbia v. Heller differently, the Second Amendment would have been effectively stricken from the Constitution without the required two-thirds vote of each house, a signature of the president, and ratification by two-thirds of the states or a constitutional convention—the only two constitutionally approved methods for amending the Constitution.
The Judiciary Is Definitely Political
With that in mind, we must also consider that when a ruling of a judge or panel of judges is reported, we are not told what law school a judge attended, where he or she practiced law or for how long, what his or her specialties might have been before sitting on the bench, or any similar information one might feel is relevant. No, the most important biographical information of judges is which president appointed the judge and, by extension, how long he or she has been a federal judge. This brings us back to lifetime appointments.
Consider, for example, President Obama’s appointments to the Supreme Court. It appears that there were three primary qualifications for an Obama short list: (1) appointees could not be a white male, (2) appointees must be a staunch ideological supporter of Obama’s notion of racial justice, and (3) appointees must be young enough that we can expect them to serve for three or more decades on the bench. It is possible that an Ivy League education was also a requirement.
Notably absent from this list is either that the person must have practiced law for any period of time or that the person must have served as a judge in any lower court. Justice Elena Kagan only practiced law for approximately three years and clerked for two years before becoming a professor and working in academia for 18 years. She left academia to work in Obama’s administration as solicitor general for just over one year before Obama appointed her to the Supreme Court—without having served one day as a judge in any court. At 55, we can expect Kagan to be on the bench for at least two decades and as many as five before she is replaced.
The Judiciary Needs Some Restraint
To be clear, this is not an argument that federal judges should be elected. However, for the sake of discussion, appointments could be for a single term of 10 years. Why 10 years? Because this frees the judge from any concern of needing to please the president who appointed the judge—the driving force of a lifetime appointment—while making the judge cognizant that a president from the opposing party may be in office should the judge wish to be considered for appointment to a higher court.
Additional requirements could be considered. To be appointed to an appellate court, the candidate must have served a term as a judge in a federal district or bankruptcy court or state appellate or highest courts. To serve in the Supreme Court, the judge must have first served in federal appellate court or a state’s highest courts.
As we see the political nature of judicial appointments and the focus on politics, not the law, when discussing cases heard by the Supreme Court, it is clear that lifetime appointments have failed the intended purpose of ensuring judicial independence. We must then consider whether lifetime appointments remain appropriate.