(Photo by Collection of the Supreme Court of the United States via Getty Images)
On the one hand, giving federal judges life tenure is a good idea. Life tenure insulates judges from politics and frees them from fear of retribution.
On the other hand, giving federal judges life tenure is a bad idea. Judges become lazy, and they stay on the bench until well after their “sell by” date.
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Justices Thomas and Alito prompted my recent thinking about life tenure. Justice Thomas’s wife is active in conservative groups, and he chooses not to recuse himself in cases affecting the interests of those groups. Justice Alito may have leaked a draft Supreme Court decision, although he denies it. Neither justice can be punished for their conduct (or even threatened with punishment, frankly).
It’s not clear that refusing to recuse yourself or allegedly leaking a decision is a high crime or misdemeanor; I suspect not. The justices have thus probably not committed impeachable offenses. Even if the justices had committed impeachable offenses, more than one-third of the Senate is in Republican hands, and there’s a Democratic president, so it’s inconceivable that the Senate would ever vote to convict.
But what about lesser offenses?
I’ve heard stories, for example, about court rules that required federal judges to fly only in coach while on court business. Some judges consistently flew first class: “It’s not a high crime or misdemeanor. What are they going to do to me?”
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I’ve heard of court rules that required judges to hand down all decisions in a timely fashion — say, 90 days after an appellate case was argued. Some judges simply disregarded that rule, holding opinions for literally years after argument. Again: “It’s not a high crime or misdemeanor. What are they going to do to me?”
These are of course procedural rules, governing judges’ conduct.
We would never approve of rules that affected the substance of decisions. We would reject any rule that provided, for example: “The judge must always rule for the plaintiff in a lawsuit” or “the judge must always adopt the conservative position when deciding a case.” Those rules would truly gut judicial independence.
But it would certainly be nice if there were some way to protect judicial independence while simultaneously requiring judges to work conscientiously, retire from the bench at a reasonable age, fly coach for short trips, and hand down decisions on time.
Maybe the framers of the Constitution should have thought a little harder.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].