* * * Debating Life Tenure of Federal Judges * * *
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Los Angeles, California July 12, 2005
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______________________________________________________Debating Life Tenureof Federal Judges(By Ron Branson - J.A.I.L. CIC, VictoryUSA@...)We know that our Founding Fathers had their posterity, to wit, us, as their best interest at heart when they wrote our Constitution, whether right or wrong. I could not tell you how many times I have day-dreamed about being able to go back in time and be among them as a spokesperson in designing this all-important document, and how my suggestions and contentions might have influenced what we now call our "Constitution for the United States."Having the benefit of hind-sight, I realize that granting federal judges life-time tenure was the sealing of the future security of our country, but I also realize that they had no ill will in so doing, no matter how foolish I deem their wisdom on this issue. They had just inscribed in their Declaration of Independence against King George, III, "He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries." This was their "cure" to make sure this never happened again.Their theory was that if they protected the judges, the judges would feel free to issue righteous decrees without fear of being removed from the bench, or of losing a portion of their salaries. However, consistent with the nature of man, giving a man all protections to perform righteously, he will use that instrument of protection to "do evil with both hands earnestly." Micah 7:3. Such is our condition of today with the additional judicially-created doctrine of "judicial immunity," with the judges deciding ultimately for themselves when it applies to one of their own.But with the new arrival of the creation of the proposed Federal J.A.I.L. Bill, we now have an option before us to negate the disastrous effect of constitutional life tenure for federal judges. J.A.I.L. provides for a clear avenue for the citizens of this country to invoke impeachment proceedings against federal judges. In short, while J.A.I.L. does not mandate any Congressman to vote in favor of impeachment, it does mandate an impeachment vote be taken against a federal judge after three or more strikes. The idea is that through repeated impeachment votes, embarrassment will likely set in and take precedent. Most any Congressman or Senator will agree that 20 times is enough. And the good thing about this is that no constitutional amendment will be necessary to implement Federal J.A.I.L. It is either the implementation of J.A.I.L., or the end of America as we used to know it! I call the recent Kelo case as my first witness.Federal J.A.I.L. will permit the President to choose whom he will without facing hotly contested confirmation proceedings. Comparing the process to a bath tub, the President controls the "appointment" spigot, while the People control the "good behavior" drain, thus creating an equitable balance. With politics being washed down the drain with J.A.I.L. enforcing the same 36" yardstick to both sides, gone will be the Republican / Democrat confirmation strife. The answer is very simple.Click here to read The Federal J.A.I.L. Bill.~~~~~~~~Age: the unspoken litmus test for Bush as he replaces O'Connor
Age is a key variable for members of the Bush administration charged with picking a successor to Sandra Day O'Connor. A recent Washington Post article, for example, indicated that former Solicitor General Theodore Olson "may be too old at 64 because the president will want someone who could be on the bench for 25 years or more, some insiders say." Indeed, most of the persons rumored to be on the president's "short list" are barely 50.
There are many things that could be said about Olson, but that he is "too old" is not one of them, unless, of course, one shares the desire of the Bush administration to lock up the current Supreme Court so that it would be impervious to a course reversal until 2030 (when Clarence Thomas, appointed at age 42, could be well into his fifth decade of service).
Life tenure is a pernicious feature of the modern American judicial system, especially when applied to the Supreme Court. Judges regularly stay on the court well past their prime, often in desperate attempts to survive until a president of their party can make the appointment of their successors.
Moreover, life tenure generates a perverse incentive that we can see operating in front of our eyes for presidents to seek young nominees as part of a lock-up strategy that is designed to prevent a switch in voter preference for the White House from actually having an effect on the membership of the Supreme Court.
Two Northwestern University scholars, James Lindgren and Steven Calabresi a founding father of the Federalist Society, incidentally, so not someone who would be expected to be critical of Republican lock-ups have shown that from 1790 to 1970 the average length of service of Supreme Court justices was approximately 16 years. Since 1970, however, the average length has gone up almost a decade, to more than 24 years.
William Rehnquist has been on the court for 34 years, 19 of them as chief justice; his immediate predecessors, Warren Burger and Earl Warren, together served only 32 years. Judges should have the self-discipline to know when to retire, but they clearly do not. Another scholar, David Garrow, demonstrated in a University of Chicago Law Review article several years ago that all too many justices have stayed on the court even after they had become seriously debilitated. (The most egregious instance was William 0. Douglas, who refused to resign even after a serious stroke; his colleagues secretly voted in effect not to allow Douglas to cast a decisive vote in 5-4 cases.) However much one might admire Rehnquist's personal valor, it is, frankly, a scandal that the seriously ill chief justice refuses to resign. Such long terms are a disservice both to the court and the country.
What would be best is getting rid of life tenure and adopting, say, 18-year non-renewable terms of office, with each president getting two guaranteed appointments per term. This would go a long way to limit the problem of the debilitated judge. Alas, such a sensible proposal is not on the current agenda, in part because even most scholars who oppose life tenure believe wrongly, I think that it would take a constitutional amendment to end the practice. (This is Calabresi's and Lindgren's view, which is disputed by, among others, Duke University professor Paul Carrington and Cornell University professor Roger Cramton.)
In the interim, then, Democrats should learn from the White House and make age an issue. They should announce, in advance, that they will be far less inclined to filibuster someone who is Olson's age than someone who is indeed likely to serve a full quarter-century. This has the advantage of being not only good politics, but also good for the country. It is not a question of ideology, but, rather, of preventing partisan lockups.
Democrats and the country at large might learn an extremely valuable lesson from the recent papal conclave. Pope John Paul II might have been a great and revered pope. But if there is anything that the election of the 78-year-old Cardinal Joseph Ratzinger made clear, it is that the College of Cardinals wanted to make sure that another such extended reign does not occur again. Seventy-eight may strike one as a bit too old as a desirable age for a new member of the Supreme Court, but surely Theodore Olson's 64 is not. Thus the new rallying cry for the upcoming battle should be: "Don't trust anyone under 64!"
Sanford Levinson, a University of Texas law school professor, celebrated his 64th birthday on June 17. He wrote this for the American-Statesman.
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