Wednesday, March 02, 2005
About Federal Judges
Doug Bandow, a senior fellow at the Cato Institute, has written an article advocating that justices of the Supreme Court be appointed for fixed terms of office rather than “for good behaviour” or for life as the federal constitution now specifies. He argues that limited terms for justices would take much of the heat out of the present controversy regarding some of Mr. Bush’s judicial nominations. Of course, such a change would require an amendment to the Constitution. Mr. Bandow’s article was published in the Los Angeles Times on March 2.
Another suggestion, published a few months ago in The Nation, was to require confirmation of Supreme Court justices by a super-majority vote in the Senate. The writer suggested a 2/3 majority, the same as required for ratification of treaties or conviction of an impeached President or federal judge. The writer of the article commented that our Supreme Court has been widely admired and copied by other democratic nations. In order to maintain respect and credibility, the Supreme Court of any democratic nation must be politically neutral and impartial. Packing the court with political sympathizers and allies may be temporarily advantageous to an administration. In the long run, it debases the court and damages its effectiveness.
These two articles address different ways of dealing with attempts to pack the Supreme Court and the federal judiciary with like-thinking ideologues favorable to a particular President and his administration. Mr. Bandow’s solution has the effect of letting the courts be packed, but allowing a future administration to undo the packing and the bias. The writer of The Nation article proposes a means of preventing the packing in the first place.
As a practical matter, it may be easier to implement Mr. Bandow’s remedy than that of the writer for The Nation. Constitutional amendments require approval of 2/3 of the members of both the House and the Senate. It is unlikely that the political party in power would agree to change the Senate vote of confirmation from a majority to 2/3. Agreement to limit judges’ tenures to some fixed time period would be more likely. State judges are generally elected for fixed terms.
A criticism of Mr. Bandow’s solution is that the result of packing the courts is a set of decisions and precedents that can not easily be undone simply by replacing the judges. In spite of the complaints of some conservative commentators that “liberal” judges make new law instead of following the constitution, it has been the tradition for centuries, both here and in the mother country, England, for judges to create law. Many of the features of our system of justice relating to the rights of defendants and the rules for handling and presenting evidence were specified first by judges and not by any legislature. Judges rely as much on previous decisions as on the constitution and ordinary laws in arriving at their decisions and conclusions. Even a conscientious judge who disagrees with a previous decision is reluctant to overturn it without a compelling reason. The public loses respect for the law if it changes too often and too arbitrarily.
Another suggestion, published a few months ago in The Nation, was to require confirmation of Supreme Court justices by a super-majority vote in the Senate. The writer suggested a 2/3 majority, the same as required for ratification of treaties or conviction of an impeached President or federal judge. The writer of the article commented that our Supreme Court has been widely admired and copied by other democratic nations. In order to maintain respect and credibility, the Supreme Court of any democratic nation must be politically neutral and impartial. Packing the court with political sympathizers and allies may be temporarily advantageous to an administration. In the long run, it debases the court and damages its effectiveness.
These two articles address different ways of dealing with attempts to pack the Supreme Court and the federal judiciary with like-thinking ideologues favorable to a particular President and his administration. Mr. Bandow’s solution has the effect of letting the courts be packed, but allowing a future administration to undo the packing and the bias. The writer of The Nation article proposes a means of preventing the packing in the first place.
As a practical matter, it may be easier to implement Mr. Bandow’s remedy than that of the writer for The Nation. Constitutional amendments require approval of 2/3 of the members of both the House and the Senate. It is unlikely that the political party in power would agree to change the Senate vote of confirmation from a majority to 2/3. Agreement to limit judges’ tenures to some fixed time period would be more likely. State judges are generally elected for fixed terms.
A criticism of Mr. Bandow’s solution is that the result of packing the courts is a set of decisions and precedents that can not easily be undone simply by replacing the judges. In spite of the complaints of some conservative commentators that “liberal” judges make new law instead of following the constitution, it has been the tradition for centuries, both here and in the mother country, England, for judges to create law. Many of the features of our system of justice relating to the rights of defendants and the rules for handling and presenting evidence were specified first by judges and not by any legislature. Judges rely as much on previous decisions as on the constitution and ordinary laws in arriving at their decisions and conclusions. Even a conscientious judge who disagrees with a previous decision is reluctant to overturn it without a compelling reason. The public loses respect for the law if it changes too often and too arbitrarily.
