Judicial Term Limits

In examining the issue of judicial term limits (a perennial proposal but one being urged with renewed vigor these days), we are continuing the examination of governance that we undertook recently with reference to the Larry Summers controversy. The judiciary, especially the federal judiciary, the judges of which are appointed, not elected, and appointed for life and removable only for serious misconduct or complete incapacity (due for example to senility), is another oddly structured institution, like a university, with which it shares the institution of life tenure now that mandatory retirement has been abolished for professors.

One can imagine a much more conventional organization of the judiciary. New graduates from law schools would be appointed to the judiciary, beginning as junior judges in traffic or domestic-relations or misdemeanor courts. Their performance would be evaluated by the administrators of the judicial system and if their performance was good they would be promoted through the ranks of the judges. This in fact is the system prevailing in most countries of the world, including the European nations (except the United Kingdom), and Japan. In contrast, in the U.S. federal judiciary, as in the English judiciary, judgeships are lateral-entry positions and promotion is rare and there is no systematic, official evaluation of performance. Most federal judges are appointed in their 40s or 50s after a career in legal practice, prosecution, or law teaching. If they are appointed as district judges (i.e., trial judges), they will usually remain in that rank; promotion to circuit judge (i.e., to the court of appeals) is not wholly uncommon, but most district judges remain such for their career on the bench. Promotion of circuit judges to the Supreme Court is even less frequent. I was appointed a federal circuit judge from teaching in 1981, at the relatively young age of 42. I have thus been a circuit judge for 23 years and will remain in that job until I die or retire. And I am very difficult to remove from office!

At first glance, the U.S. federal system, in contrast to the European and Japanese, seems hopelessly devoid of incentives to good performance. Apart from the very limited promotion opportunities and the difficulty of removing federal judges, all judges at the same level (i.e., all district judges, all circuit judges, and all Supreme Court Justices except the Chief Justice) are paid exactly the same salary and have only very limited opportunities to supplement their salaries with teaching or writing.

Nevertheless, the performance of federal judges (most state judges are elected, and for a variety of reasons this is an unsatisfactory method of judicial appointment, used nowhere else, as far as I know, in the world) is generally thought to be on a par with that of judges in Europe, Japan, and other countries that have a career judiciary. One reason is that when a person is appointed to the bench after another career, there is a good deal of information about his competence and work ethic; moreover, appointees are carefully screened by the FBI, the White House, and the Senate Judiciary Committee. It is commonplace when output is difficult to measure to monitor inputs instead. The output of the federal judiciary is difficult to measure because the complex and ambiguous character of much federal law makes it very difficult to determine when a judicial decision is erroneous. Nations that have career judiciaries generally have simpler, more cut-and-tried legal doctrines; that makes it easier to monitor judicial performance and so create a career ladder in which judges are evaluated for promotion by their superiors.

Whether in the academy or in the judiciary, life tenure is a formula for abuse. Basically, it eliminates any penalty for shirking; the salary structure of federal judges, noted above, eliminates the carrot along with the stick. This suggests the possible desirability of imposing term limits on judges'say, 10 years (a common term for judges of constitutional courts in foreign countries). This would limit the length of service of the shirkers and also create an incentive for good performance because the judge would want to secure a good job after his judicial term expired. The downside (illuminated by the literature on term limits for legislators) is that judges would be distracted by having to make arrangements for another job at the expiration of their term; their decisions might be distorted by desire to curry favor with potential future employers; and more rapid turnover of judges would reduce legal stability. These might not be compelling arguments were it not for the careful screening of judges, which eliminates from the appointment pool the candidates most likely to shirk. (I am assuming that judges would not be eligible for reappointment when their terms expired, as that would result in rampant politicization of the judiciary.)

An ingenious compromise is the institution of "senior status" whereby judges who reach the age of (voluntary) retirement, normally 65, can continue to work, at no reduction in pay, as "senior" judges'provided they are willing to assume at least one-third of the normal workload. This is an attractive offer, which most eligible judges accept'but part of the deal is that a senior judge can be removed (though with no diminution of pay) from judging by the chief judge of his court or the court's judicial council; in effect, he no longer has tenure. This is a variant of the "buy out" schemes by which universities and other employers try to induce retirement.

The case for term limits for Supreme Court Justices, as urged by Becker, is stronger. The Supreme Court is largely though not entirely a political court'almost a third branch of the legislature'and life tenure for politicians is profoundly undemocratic. The Justices are ineligible for senior status, moreover, though if they retire they can sit in the lower federal courts if they want. With increased longevity, Justices are likely to be serving very long terms into very old age. This strengthens the argument for Supreme Court term limits.

I realize from the comments that I should have said more about the specific issue of term limits for Supreme Court Justices.

The case for term limits for the lower federal judges (circuit and district judges) is weak. As I said in my original posting, the institution of "senior status" largely takes care of the senility problem. (Also, contrary to one of the commenters, incapacity is a recognized basis for removing a federal official by the impeachment process; the first federal judge impeached and removed from office was a drunkard and a lunatic, but had not engaged in wrongful conduct, such as taking a bribe.) There is shirking, chiefly in the form of excessive delegation of judicial functions to law clerks and other staff and excessive indulgence in leisure activities, such as travel, and the more serious form of misbehavior that consists of willful decision-making. However, these problems are not serious enough to warrant a fundamental change that would reduce legal certainty by increasing judicial turnover and would make a federal judicial career less attractive and so reduce the field of selection, though the latter effect could be offset by salary increases--but that, of course, would be a cost also. In addition, as I said, candidates for federal judgeships are carefully screened, and at an age when most people either have, or have not, established habits of work that will persist even if sticks and carrots are removed.

The issue of term limits for Supreme Court Justices is more challenging, first because the Court is, to a great extent, a political court, that is, a court the decisions of which are guided by the policy preferences of the judges, and second because Justices have less incentive to retire than the lower-court judges.

Let me start with the political issue. The contrast with the lower federal courts, especially the courts of appeals, should not be overdrawn. Plenty of cases that never get to the Supreme Court are political in the sense just indicated, but fewer, and they are the less politically fraught cases--otherwise the Court would take them up. The best index to the political component of a court is the amount and character of controversy regarding appointments: controversy is greatest for Supreme Court Justices, less for court of appeals judges, and least for district (trial-level) judges; and the focus of controversy is most likely to be ideology rather than politics at the Supreme Court level, less likely at the court of appeals level, and least likely at the district court level.

But I don't think the political argument for imposing terms limits at the Supreme Court level is persuasive, despite the anomaly in a democratic system of having a corps of powerful political officials who serve for life, as in a monarchy. A lesser objection is that by increasing turnover of Supreme Court Justices, term limits (depending of course on their length) would operate as a tremendous political distraction, since it would be known with certainty when a vacancy would occur. So the political struggle over a successor would start sooner, and there would be more such struggles because there would be more vacancies.

More important, when we contrast democracy with dictatorship we aren't just comparing term lengths; we are also comparing incentives. Officials who are elected for short, fixed terms and can be reelected have a strong incentive to conform their behavior to the preferences of the electorate, interest groups, public opinion, and other more or less democratic sources of influence on policy. An official appointed (not elected) for a long fixed term, and ineligible for reappointment, is a tyrant, in the sense of being (largely) insulated from the normal political constraints on official behavior.

We may want that insulation; we may want a court to be an independent power base; but the premise of the movement for judicial term limits is that courts are too independent, too powerful. The imposition of term limits would not reduce that power. It would merely increase the number of power holders. And as they would be holding power successively rather than simultaneously, there would be no competitive check on their exercise of power. So I don't see how term limits would actually limit judicial power.

But there is still the retirement question. People can get stale from serving in the same job for a great many years and most elderly people, before diagnosable senility sets in, experience a diminution in mental acuity and, especially, adaptability to novelty. The combination of very long service in the same age with very great age is likely to produce a decline in performance. And while long experience in a job can make one more efficient at it, beyond a point additional experience adds nothing.

This is certainly a problem for the Supreme Court, but perhaps not a terribly serious one. There are four reasons. First, if one's performance declines from a very high level, it may remain quite adequate; Holmes, Brandeis, Learned Hand, and other illustrious oldsters were not as sharp in their eighties as they had been, but they were sharp enough. Second, the Supreme Court's workload is very light, with a long summer recess. Third, the Justices have terrific staffs. And fourth, the most important skills in law are verbal and rhetorical, and they tend to decline with age less rapidly than logical, theoretical, and mathematical skills. On all these counts, Supreme Court judging is the quintessential geriatric profession.