The drafters of the 1787 Constitution had good reasons for giving life
tenure to federal judges. Colonial judges generally served at the pleasure
of the crown, hence the ninth grievance in the Declaration of
Independence, that the king “has made Judges dependent on his Will
alone, for the tenure of their offices, and the amount and payment of their
salaries.”
But the average life expectancy of an American in 1787 was about 36, less
than half what it is today. The 21st century reality is that when Supreme
Court vacancies arise, one of the criteria for selection is that the judge be
young enough to serve for several decades. Many of our most
distinguished jurists, judges like J. Harvie Wilkinson and Diane Wood,
both in their sixties, are by now too “distinguished” for our highest court.
A great many Supreme Court judges, William O. Douglas most famously,
have outlasted their own lucidity. What’s more, as tenures on the Supreme
Court have grown over time, the frequency of vacancies has shrunk. The
ad hoc nature of Supreme Court retirements increases the political stakes
— and the attendant political circus — of each new appointment.
There are better paths to judicial independence. Germany and France use
fixed terms of office for their high courts. Countries like Australia, Canada
and Israel have mandatory retirement ages. A recent proposal by
Professors Steven Calabresi andJames Lindgren to replace the current
system of Supreme Court appointments withnonrenewable 18-year terms,
with one new justice every odd numbered year, is worth serious
consideration.
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