Constitution day is a time for celebrating our great founding document, but also for considering possible amendments. An “oldie, but goodie” is amending the Article III, Section 1 provision providing for basically life-time tenure for federal judges, subject to impeachment — in historical perspective, only twelve federal judges have been impeached and eight convicted. During the Progressive era, term limits for federal judges were proposed because the Supreme Court was increasingly out of step with the constitutional politics of the country. Much later a young attorney in the Reagan administration — who is now Chief Justice John G. Roberts, Jr. — in a 1983 memo lamented the expansion of judicial power, observing that “the Constitution is safe when the Court is out of session.” The problem is that in the last thirty years Republican and Democratic presidents have increasingly appointed younger and younger justices in order to ensure their policies persist long after they have left the Oval Office. By contrast, the justices on the European Court of Justice and the national constitutional courts established in Germany and other Western European countries after World War II all have fixed terms of service. And there is no indication that the fixed terms of European judges have compromised judicial independence. A fixed term of, say, fifteen years for federal judges would also enhance the democratic accountability of the federal judiciary, as well as perhaps diminish the partisan fights over Senate confirmation of federal judges.
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David M. O’Brien is the Leone Reaves and George W. Spicer Professor of Politics._
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