WASHINGTON -- Judicial term limits aren't the sexiest, most inspiring campaign issue of modern times. But they've been mentioned in recent weeks in speeches and appearances by several potential Republican presidential candidates, suggesting that they could very well become a prominent fixture of the GOP’s 2016 primary.
At the Conservative Political Action Conference last week in National Harbor, Maryland, two of the base’s more popular candidates delighted the audience by offering support for the idea.
“Maybe we should term limit out-of-control federal judges,” Sen. Rand Paul (R-Ky.) said on the stage of the main hall. He delivered the line almost as a throwaway.
At a side session hours earlier, Ben Carson, the pediatric neurosurgeon and likely presidential candidate, said the time had come to reconsider lifetime appointments for federal judges.
“Remember, when that was put in place the average age of death was 47,” said Carson, no stranger to helping people live longer lives. “So it really didn’t matter that much. Now it matters a lot.”
It wasn’t just at CPAC either. A month earlier at the Iowa Freedom Summit, former Gov. Mike Huckabee (R-Ark.) also pointedly declared the country’s need for term limits. “Not only for the executive and legislative branches,” he told the crowd, “we need term limits for the judicial branch because nobody ought to wear a black robe for the rest of his or her life.”
A sense that the federal judiciary could benefit from axing lifetime tenure isn’t unique to either the Republican Party or the 2016 campaign. It’s been an oft-discussed topic in political, legal and academic circles for some time, spanning ideological divides. Usually, it’s tempered by the realization that changing the system would be a monumental task: requiring an amendment to Article III of the Constitution, which provides that federal judges “shall hold their offices during good behaviour.”
But the growing talk of the idea among potential presidential candidates this cycle has left advocates of the concept more excited about the prospect of change, even if it remains far off.
Back in 2012, then-Gov. Rick Perry (R-Texas) was one of the few preaching judicial term limits on the trail. He called himself a “true believer” in the concept, arguing that “too many federal judges rule with impunity from the bench, and those who legislate from the bench should not be entitled to lifetime abuse of their judicial authority.” The speech was described as a Hail Mary in the press.
There are a variety of reasons why the Republican Party has grown more receptive since then. Frustration with seeing notable court cases not go their way has been supplemented by a growing belief that, in an era of governmental gridlock, the judicial system is an effective vehicle for influencing policy.
“There obviously has been dissatisfaction with the Supreme Court for a very long time on the right, and the health care [individual mandate] case can’t have helped matters in that regard,” said Randy Barnett, a law professor at Georgetown University who helped bring that challenge to the mandate in front of the Supreme Court.
Barnett himself doesn’t support limiting terms on the bench. Justices, he argues, are already susceptible to political influence. Removing one of the layers protecting them wouldn’t help matters; it would make them worse. “I do think there is virtue to having the court be stable all the time and not move around,” he said. “It is very difficult for the court to stand up to popular opinion and majoritarian branches under the best of circumstances. Making it even more difficult is a mistake.”
But other lawyers and prominent legal observers say that the downsides of changing the system are outweighed by the problems of the status quo.
“I think term limits are a good idea,” said Jeffrey Toobin, a legal commentator on CNN and an author for the New Yorker. “Some combination of term limits and or mandatory retirement makes a lot of sense. The framers created the federal judiciary at a time when average life spans meant that 10 years would be about it for most judges. And fortunately, we don’t live in a world where people die in their 50s much more. “
Among the various proposals for ending lifetime tenure, the most popular for Supreme Court justices is to implement a single 18-year term staggered in a way so that each president in a single term in office would have two vacancies to fill. Most commonly associated with law professors Steve Calabresi and James Lindgren, the idea counts longtime Supreme Court correspondent Linda Greenhouse and prominent D.C. scholar Norm Ornstein among its supporters.
Toobin, likewise, called 18-year-terms a “very reasonable” policy to restructure how judges serve. But, he said, it doesn’t “have a chance in the world because it would involve amending the Constitution, and fortunately it is very difficult to amend the Constitution.”
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