January 16, 2005

OVER EAGAR:

How Long Is Too Long for the Court's Justices? (LINDA GREENHOUSE, 1/16/05, NY Times)

Lifetime tenure for judges was "the best expedient which can be devised in any government," Alexander Hamilton wrote in The Federalist No. 78, defending the Constitution's provision for judges to "hold their Offices during good Behavior." Of the wisdom of that proposition, he added, "there can be no room for doubt."

But an ideologically diverse group of legal scholars is now not so sure.


Like the petulant proposal that the Electoral College be abolished because Al Gore lost in 2000, this is simply a case of folks who are so self-absorbed that they're willing to jettison an idea that's served well for centuries just because they're dissatisfied with one instance they happen to have observed personally.

Posted by Orrin Judd at January 16, 2005 5:28 PM
Comments

No, if they died by 60-65, I could see that, but we're living a lot longer today. Jefferson and Adams were not the norm in the 1800s.

Posted by: Sandy P at January 16, 2005 6:04 PM

They were of their social milieu. John Marshall died at 79, still serving.

Posted by: oj at January 16, 2005 8:25 PM

this is simply a case of folks who are so self-absorbed that they're willing to jettison an idea that's served well for centuries just because they're dissatisfied with one instance they happen to have observed personally.

Oh, I don't know, OJ -- Calabresi is a good guy. Plenty of states term-limit or elect their judges and that seems to work well. Remember that California Supreme Court judge from a while back who voted to overturn capital punishment no matter what the circumstances? That's not "good behavior," and when it became clear she was writing law rather than interpreting it the voters rightly kicked her out.

Posted by: Matt Murphy at January 16, 2005 11:04 PM

OJ: Life Tenure is not a good thing. They all go nuts after a while and they are all subject to the weaknesses of the flesh.

They go nuts because they live in a bubble where nobody ever tells them that they are wrong. And everyone always kowtows and defers to them.

At the very least there should be a manditory retirement age. None of these guys is such a trancendental genius that he has to be kept on after he he is to ill and too senile to go on. Furthermore, the reality is that they burn out long before that.

Second I am not sure that you really believe that the idea has served well for centuries. SCOTUS has been dysfunctional since it caved into Roosevelt in the late 30s and it has only gotten worse.

I believe a number of changes are needed. A much larger court and manditory retirement or limited terms or both would be among them. The continued subjection of the republic to the whims of 9 old women from the canasta club and kniting circle for the permanently dyspeptic has to stop. And we can can no longer depend on the angel of death to stop it for us.

Posted by: Robert Schwartz at January 17, 2005 12:55 AM

If it's not broken don't fix it.
It's broke.

Posted by: h-man at January 17, 2005 6:45 AM

I still like my idea of dueling Supreme Courts.

Two, each arranged just the way we do today.

Over time, each would develop a rather different approach to constitutional law.

If you wanted to appeal, you'd flip a coin to see which bench you got.

It'd cut way down on the meaningless suits.

Posted by: Harry Eagar at January 18, 2005 6:45 PM
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