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Monday, June 11, 2012

Judicial term limits and the lower courts

The ongoing Slate Hive Discussion How Can We Fix the Constitution is posting proposals for constitutional amendments, from both invited contributors and readers. Some of the ideas are worth a look. Linda Greenhouse's new contribution argues for amending Article III to replace "good behavior" tenure with an 18-year term for judges of the supreme and inferior courts; Larry Sabato offers the same proposal. Both would keep salary protections. Eighteen years copies the statutory reform proposal spearheaded by Paul Carrington. But while Carrington's statutory proposal only applied to Supreme Court justices, Greenhouse and Sabato propose 18-year terms for all federal judges, although their concerns are limited to SCOTUS.

While I have come around to the Carrington proposal as a statutory change for SCOTUS, the idea and need for term limits does not translate easily to lower court judges. At the very least, changes cannot be one-size-fits-all for the entire federal judiciary and thus should be done by statute rather than by constitutional amendment.

Start with whether term limits are even necessary for lower court judges. Again, Greenhouse's post focuses entirely on limiting the power of SCOTUS, before then proposing an amendment covering all federal judges. On one hand, we can say lower court judges wield more power because they decide so many more cases than do the justices. And because the courts of appeals are the practical court of last resort for most cases and issues (at least in the short term), they provide the last word on a lot of legal issues. And with senior status, lower-court judges easily can and do serve 40+ years. So the concern for super-annuated judges sticking around for a long time is applicable. On the other hand, an individual court of appeals judge wields less power because courts of appeals hear the vast majority of cases in three-judge panels (with en banc review limited to relatively infrequent major cases), so even the most influential judge likely will not be involved in many of the key cases that pass through her court. District judges do not make binding precedent, so their decisions do not influence the world at large or the state of the law  at a national level (beyond the parties to the case) to the same extent.  Concerns for the "insularity" of life tenure also have less resonance for district judges, who interact regularly with lawyers and (gasp!) litigants. In fact, given that major litigation can take years, perhaps there is a benefit to the stability that comes with long-serving trial judges.

Even accepting the need for term limits, 18 is not necessarily the appropriate number for lower courts. That number is being bandied about with SCOTUS in mind--the idea is to give every President a SCOTUS appointment every two years, thereby (it is hoped) removing some of the hostile politics from the confirmation process. And 9 x 2 is 18. Makes sense.

But lower courts are all different sizes. At the court of appeals, the First Circuit has only six judgeships, the Ninth Circuit has 29, and all the other regional circuits have between 11 and 17. For district courts, many small districts have three judges while several larger districts have in the 20s. Interestingly, no lower court has exactly nine judgeships. The point is that the simple math that works for SCOTUS does not work across the federal judiciary. We could create a workable scheme that uses different term limits for different courts, but not if the singular solution is imposed by a number enshrined in the Constitution.

Moreover, I have not worked out the numbers on this, but what would such regularized appointments in the lower courts do to the workload in the White House, the Senate Judiciary Committee, and the Senate? The idea is a consistent number of routine biennial appointments. Can the President really nominate, and the Senate confirm, 106 judges (one justice, 13 circuits, 92 districts) every two years? And what happens if the confirmation process slows down (for whatever reason), when there is a rash of constitutionally imposed retirements looming?

Finally, if the 18-year-term is constitutionally imposed, then what? A blunt constitutional limit does not seem to allow for anything like senior status; it appears every judge serves 18 years, then ceases being a federal judge. This is problematic for a number of reasons, especially in the lower courts. As Steve Burbank and his co-authors show in a new paper, senior district and circuit judges are keeping the lower courts afloat by taking on even heavier caseloads than they are statutorily obligated to take on and sitting by designation in other regional circuits to help with heavier workloads. Absent the creation of new judgeships (something Congress seems unwilling to do), lower courts cannot function without senior judges. What happens if we lose that group, especially if it is accompanied by a constitutionally mandated retirement on that court every two years? One appealing aspect of the Carrington proposal is that it gives the justices who have rotated out the option of becoming a "senior" justice, who would hear SCOTUS cases when necessary, but primarily would sit by designation in the lower courts. This would provide an additional group of senior judges to help with the work in the courts of appeals.

I still am not sure where I come out on term limits for lower-court judges. The point is that we cannot paint the entire federal judiciary with a single brush. At bottom, these proposals are concerned only with  SCOTUS, which is all anyone cares about outside the legal academy and the legal profession. So if the concern is SCOTUS, then limit the amendments only to the justices. Leave the lower courts for separate consideration of whether to change and how.

Posted by Howard Wasserman on June 11, 2012 at 09:35 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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A constitutional amendment can include a "senior status" provision and other nuances. Also, if the amendment merely gives Congress more discretion, without being specific, that might be the best approach.

I find judicial term limits less important than some though -- especially if senior status etc. is in place -- I probably would find it acceptable. I am more concerned with the nomination process. I think some limit should be placed there, such as limiting the time period for judicial nominations, such as a 180d window.

This largely a political problem (if one considers it as such), it is harder to address.

Posted by: Joe | Jun 11, 2012 10:32:38 AM

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