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The federal courts could be in for a dramatic change if Texas governor Rick Perry wins the presidency. The Republican presidential hopeful is looking to curb the court’s alleged ‘judicial activism’ by ending the practice of appointing justices for life.
Under the US Constitution, federal judges (including Supreme Court justices) hold their seats for life and can only be removed after an impeachment trial in the Senate. Because their extended tenure allows them to shape judicial policy long after the president who appointed them has left office, their confirmation hearings in the Senate have become increasingly bitter in recent years.
In his 2010 book Fed Up!, Perry describes the Supreme Court as “nine oligarchs in robes” and calls for measures “to restrict the unlimited power of the courts to rule over us with no accountability.”
One of the measures that Perry briefly discusses is stripping justices of their life tenure. Instead, he supports a system where terms are staggered so that there is a retirement every two years or so. Each justice would serve for eighteen years, which would prevent any one president from being able to appoint a majority of the court.
Although Perry has cast his argument in terms of restraining judicial activism, others have called for an end to life tenure on medical grounds. In a January 2011 article on the the independent news site ProPublica, Joseph Goldstein highlighted the effect of senility and dementia on the federal bench.
He revealed that the percentage of octogenarians and nonagenarians hearing cases in federal courts has doubled over the past twenty years. Furthermore, forcing a debilitated judge off the bench is incredibly difficult. At present, it is usually done by behind-the-scenes peer pressure from fellow judges.
The last impeachment for mental incapacity was in 1803, and while it is possible for a federal judge to be forcibly retired due to permanent disability, this has only happened twice in the past twenty years.
Currently, there is a form of semi-retirement in place for federal judges. If a judge has reached the age of 65 and has served for at least fifteen years, they may elect to assume senior status, which entitles them to work part-time even though they have vacated their seat. They also continue to draw their full salary.
Although the scheme is designed to let elderly judges step aside with dignity to make room for new talent, its voluntary nature may undermine its effectiveness. Also, the idea of a judge handling any cases while suffering from a cognitive impairment tends to undermine confidence in the judiciary.
Although the majority of octogenarians and nonagenarians on the federal bench are almost certainly fit to serve, the question of what to do with judges who refuse to resign due to their declining faculties is one that will assume new urgency as the average lifespan increases.
In the end, it may be biology, not politics, that lends credence to Perry’s plan.