Editore"s Note
Tilting at Windmills

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March 15, 2005
By: Brad Plumer

JUDICIAL TERM LIMITS....Since courts and judges are obviously going to be on the debate agenda over the next few weeks (wonder why?), let's talk courts and judges. Gary Becker wants term limits for the judiciary:

[T]he average tenure of a Supreme Court Justice has increased from about 16 years to almost 26 years, and the average age at retirement grew from about 70 years old to 80.... Given their desire to influence future Court decisions, presidents are appointing younger Justices who will be able to affect judicial decisions for 40 years or more. Moreover, the prestige and power of a Justice is so great, and the workload so low... that they have little work incentive to retire before death or severe incapacity.

Do we really want 80 year olds, who have been removed from active involvement in other work or activities for decades, and who receive enormous deference, in large measure because of their great power, to be greatly influencing some of the most crucial social, economic, and political issues? My answer is no

So 18-year term limits it is, says Becker. But there seem to be a couple issues here. The first thing that catches my eye is that, with 18-year terms, any two-term president would have the chance to nominate four Supreme Court judges. (Clinton, by contrast, only got two picks, and Reagan only three.) That seems like a much, much greater power than the opportunity to appoint a very young judge. And every single election would instantly become "about" those two guaranteed Supreme Court nominees, which, besides making American politics even uglier, would undermine whatever political independence the judiciary now claims to have. Terrible, just terrible.

This also goes back to one of my pet peevesthat the presidential election is way too crude a process to represent the "will of the people". After all, it's the only time the entire nation can get together and vote, collectively, on a national representative, as opposed to a local one. And yet we're voting for a person who a) conducts foreign policy, b) essentially sets the domestic agenda, and c) picks judges. Now there's no way majority preferences can manifest themselves coherently in one single person. Just because the voting public selects three Republican presidents in a row, for instance, doesn't always mean the majority "wants" six conservative judges on the court, which Becker's proposal would entail. Perhaps they were voting on foreign policy, or terrorism, or Social Security, or whatever. Unfortunately, though, the only checks on the president are the House and Senate, which hardly express the collective will of the nation. (As I once showed on Mother Jones' blog, the current Democrats in the Senate represent more Americans than the Republicans do.)

Now it would be nice if we had two truly national elections: one to elect the president, and another to elect one of the Congressional chambers via proportional representation. Then the collective public could vote on, say, one party's foreign policy and another party's judicial preferences. But we don't do that. So, um, "nay" to Becker's proposal.

Brad Plumer 5:06 PM Permalink | Trackbacks

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