The whole drama around the process of confirmation of Kavanaugh as a judge in the SCOTUS is a wake up call for the citizens of USA to address the underlying problem – the life time appointments of judges to the highest court. I want to share a few of my thoughts on this topic
Does life time appointment make judges impartial and reduce pressure on them ?
I think our reflex is to say “of course, it does”. I don’t think that is true actually. Life time tenure gives them job security and prestige obviously, but their fundamental political and economic leanings do stay with them as we have seen from predictable judgements time and again. As long as they know exactly how long they have the job – there is no reason why they should feel extra pressure to make impartial decisions in their tenure.
USA is probably the only democracy with this issue
As far as I can find out, there is either a mandatory retirement age or a term limit for judges in the highest courts of other countries. Some countries seem to have a combination of both . If you know of exceptions, I will gladly stand corrected. But if we are unique like I think we are – at least we can look at countries who have solved this problem in the past and get some ideas. It may be interesting to note that Thomas Jefferson was against the idea of life time appointments . And as far as I can find out – Rhode Island is the only state in this country that allows life time tenure for their judges. Should that not make us sit up and think harder about the federal system ?
Age – both too young and too old – is a real problem
When it comes to being the highest court, age comes as a problem in two flavors. Presidents like young judges because their party’s interests will be taken care for a very long time. Too young judges being appointed unfortunately means that judges with more to offer than the young ones get overlooked all the time strictly because of age. The second flavor of the problem is that we no longer know if the very old judges have the ability to make high quality decisions, or whether they are just the face of what their law clerks decide. With medical science improving – the chance of longer life of judges is the trend we should bet on. There is a reason why most professions have a retirement age !
Unhealthy confirmations need to be avoided
SCOTUS is too important in a democratic setup to have judge appointments turned into political drama. But since the confirmations only come at random points – both parties have all the incentive to push for extremes. Also, it is impossible to plan adequately for the next judge if we don’t know when the next vacancy will come. Should we not develop the top legal talent in a planned way for this top job, as opposed to rush through the process in short order ?
There are several implementation issues to work through
There is practically no way to make any overnight changes – any change will need to be phased in over a long period of time. For the younger judges, there will be always a question of what can they do after retirement. Pension plans will need to be revisited. There needs to be a debate on how long should the tenure be – but if we go by history, it converges naturally around 15-18 years on average. We will need a constitutional amendment probably to get this done – but that is not something we have shied away from in the past. 22nd Amendment to limit Presidents to serve only two terms is a good example – and that was in 1951.
An honor system could work just fine too
Before FDR, Presidents just left office by themselves after 8 years by themselves (or nudged to do so). Our judges could follow such an honor code too – that they just choose to leave the bench after a certain number of years, say 15. That would be an awesome precedent to set – and will probably make it a lot less frictionless process than a constitutional amendment. The 22nd Amendment was passed by Congress in 1947 – but it took till 1951 to get states to ratify it. All of that can be avoided if the current Supreme Court judges set a great example themselves.