The issue of judicial tenure is bigger than ever and, while I am somewhat skeptical of many of the proposed solutions to that problem, I am of the opinion that we can significantly improve the judicial appointment process through the careful implementation of term limits.
The following is a possible constitutional amendment that ends life tenure for judges, and imposes term limits on Supreme Court justices, but is very conservative in the manner in which it does so – that is, it largely maintains the present constitutional framework while adding a retirement provision for most federal judges and term limits for the Supreme Court. It also addresses what happens if the Senate refuses to do its job. It’s not supposed to fix all that ails the process, but only to represent a cautious solution that (I think) reduces some of the problems we are currently experiencing.
Constitutional Amendment: Judicial Tenure
- The Judges, both of the supreme and inferior Courts, shall be appointed to terms of nine Years. The term of a judge shall end at noon on the 1st day of October, and the terms of their successors shall then begin.
- No later than the 1st day of April of the year in which the term of a judge expires, the Senate may hold a vote of confidence. If no vote is held or if less than two thirds of the Members present vote against extending the judge’s term, the term of any judge who is eligible to serve additional terms shall be extended by an additional nine year term.
- A judge of the supreme Court may serve no more than two terms as a judge of the supreme Court. A judge of an inferior court who has reached the age of seventy-two shall not be eligible for additional terms as a judge of an inferior Court.
- In any year in which the term of a judge of the supreme Court expires, the President shall nominate a supreme Court judge, subject to confirmation by a 51 vote majority of the Senate. The Senate shall hold a vote on the nomination no later than 120 days after the date it receives notice of the nomination. If the Senate fails to hold a vote within 120 days the nominee shall be deemed confirmed to the supreme Court.
- This article shall apply to judges of the supreme Court who are serving in that capacity at the time of ratification of this Amendment as follows: Starting three years after the ratification and in each successive year, the term of the most senior judge of the supreme Court shall expire. If the judge whose term is expiring has served less than eighteen years in the capacity of supreme Court judge, notwithstanding the other provisions of this Amendment but subject to a vote of confidence, that judge shall be eligible for one additional nine year term on the supreme Court.