Benching the judges

Posted: Mar 27, 2005 12:00 AM

Term limits aren't just for the U.S. President and legislatures in 15 states. They deserve to be extended, even to the Supreme Court.


Many reasons have been offered.

Today's Supreme Court has only one justice younger than 65. It has been accepting fewer cases in recent years ? perhaps a result of an aging court?

Others argue that partisan rancor in the U.S. Senate is dangerously high; add the issue of selecting federal judgeships, especially to the High Court and for a life term, and you reach meltdown.

Norman Ornstein, a scholar with the American Enterprise Institute, writes in The Washington Post that "to prevent this partisan warfare from going nuclear: amend the Constitution to eliminate lifetime tenure in favor of single 15-year terms, at least for Supreme Court justices and federal appeals court judges."

Ornstein's support for limiting federal judges is a bit surprising, given his opposition to congressional term limits, which he argues would result in something akin to the end of the universe. Coming in the aftermath of a second term for President Bush, his support for limiting judicial tenure may have a partisan trigger.

Nonetheless, Ornstein is right, even if perhaps for the wrong reasons.

What are those better reasons? Could it have something to do with the reasoning of the current court?

Well, no small amount of sentiment for ending life tenure can be tied to a number of unpopular decisions. The Supreme Court ruling that flag-burning is speech protected by the First Amendment and the more recent decision by the Ninth Circuit Court of Appeals, that the words "under God" in the Pledge of Allegiance should be stricken, have deeply offended most Americans.

While many of the decisions have angered Republicans and conservatives, the Supreme Court judgment in the Bush v. Gore case, arguably deciding the 2000 presidential election, spurred anger and a reassessment of the Court by Democrats and liberals.

Yet, disagreeing with a particular decision ? even an important one, or several ? would hardly lead the American people to alter the basic Constitutional construction of the nation's judiciary. And shouldn't.

But a plethora of decisions reflect a court drunk with power, out of touch with the people and our Constitution. The court no longer seems independent of the other branches nor removed from politics.

If life tenure is supposed to cause federal judges to uphold the Constitution above all other considerations, the judges don't seem to have gotten the instructions. In my Common Sense e-letter, I've skewered a steady stream of twisted court decisions. Here, let's consider just two.

First, the regulation of political speech. Campaign finance reform is enthusiastically pushed by some and superficially endorsed by many, but the First Amendment to the Constitution says ever so clearly that "Congress shall make no law . . . abridging the freedom of speech. . . ."

Speech has been interpreted broadly, as it should be, but the amendment was most specifically intended to prevent regulation of political speech. Yet, in convoluted opinions totaling more than 1,600 pages, a federal appeals court upheld most of the McCain-Feingold campaign-finance act. The Supreme Court then followed suit, even endorsing a provision banning groups from mentioning the name or showing the likeness of a federal candidate in advertisements within 60 days of an election.

Second, consider racial discrimination. Recently, the Supreme Court upheld certain affirmative action policies of public universities, but in doing so, the Court stipulated it might reconsider its ruling after 25 years ? as if the same equal-protection clause could mean different things from year to year.

Because of the Court's behavior -- which dates back at least to the Great Depression -- the Constitution's intended separation of powers has vanished. The courts rarely strike down an act of Congress that exceeds its authority, and rarely does any judge face repercussions from the Congress for overstepping judicial authority.

"The way we got into this mess begins with a judiciary that is already politicized," University of San Diego law professor Lawrence B. Solum says. "Lifetime tenure looks like a pretty silly idea if it is being used to safeguard the power of judges who have been thoroughly politicized."

Calls for a limit on judicial terms are long overdue. One of the best proposals is House Joint Resolution 55, a constitutional amendment introduced by Texas Rep. John Culberson (R-Houston), that would require federal district court judges to be retained every 10 years by both the state legislature and the governor where the judge serves. That strengthens federalism by interconnecting the federal courts with state governments, which are closer to the people.

Yet this amendment is going nowhere in Congress. The problem is obvious: we can hardly expect an out-of-control Congress to help us bring the judiciary under control.

Instead, in keeping with Alexis de Tocqueville's view of the states as "laboratories of democracy," bringing the judiciary under control must start closer to home. State judges have exhibited similarly bad behavior and, through the initiative process and more accessible legislators and elections, voters can do something about it.