Arnold Agrees with a Conservative

Wednesday, March 09, 2005

Arnold Agrees with a Conservative

Not in all particulars, but with the general concept. Eliminating lifetime tenure would cost us years of service by excellent judges in some cases. Some of our greatest judges--Holmes, John Marshall, and so on--served for 30+ years and well into old age. Of course, the same is also true of a great many mediocre judges--Field, to take one example whom no one will remember--and some good judges have hung on until their faculties had declined to the point that they weren't good judges any more. So there is a significant cost to the idea of fixed terms (or, relatedly, a mandatory retirement age). But I think those would be outweighed by the benefits, as the article explains. The article is also notable for recognizing the importance of preserving judicial independence, ruling out "solutions" like jurisdiction-stripping legislation and judicial impeachment.

It's hard to see this happening any time soon. Still, if we have another decade like the 90s, when the GOP held up so many of Clinton's nominees that emergencies were declared on a number of federal appeals courts and the usual rules regarding the composition of panels were suspended, people may consider the situation serious enough to negotiate a "cease fire" over nominations, and fixed terms could play a role in a negotiated solution.

(The current fight over filibusters isn't likely to lead to a cease fire along these lines. First, the number of vacancies is quite small right now, so no matter how much Republicans and their house pundits talk about a "crisis," Democrats cannot be persuaded that such a crisis exists. Second, and again despite their public rhetoric, Republicans know that the status quo is working quite nicely for them at the moment, as Bush populates appellate courts with lots of reliably conservative and often quite young judges, so term limits is the last thing they'd want on the table. We'll need a return to control of the Senate by the party that doesn't control the White House, and a sequence of events in which both parties have been on both sides of the fight often enough to decide that a negotiated peace is better than an ongoing stalemate.)

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