Why Judges Serve For Life

This is in response to a comment from Todd’s excellent posting “SCOTUS ‘Too Conservative‘ ”

No matter how short I cut the comment, it wouldn’t “take” and it’s a valuable bit of information from the debate that surrounded the adoption of the Constitution. Here’s the comment:

# William A. Stoddart Says:
July 29th, 2007 at 11:15 am

It is just plain stupid that Supreme Court justices are appionted for life. If a President has the opportunity to appoint a couple of justices, like “The Decider” has, these appointments can effect future generations. It runs against our constitutionally established democracy to have the political leanings of one president effect the course of the nation for 30 years or longer. No governmental appointee should have the gaurantee of a lifetime position. Even when they become seriously ill or senile they currently can’t be forced from the bench unless they volunteer to do so. This practice gives the federal judiciary an unfair advantage in our system of checks and balances. Perhaps 10 years would be a fair benchmark for a Supreme Court judges tenure.

Here was the response to that argument. It’s not meant as a refutation of Mr. Stoddart, but as information on which to base a discussion. From the Federalist Papers:



The Judiciary Department
From McLEAN’S Edition, New York.
Alexander Hamilton

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.


If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.


There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. …


Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.


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About Hart Williams

Mr. Williams grew up in Wyoming, Nebraska, Kansas and New Mexico. He lived in Hollywood, California for many years. He has been published in The Washington Post, The Kansas City Star, The Santa Fe Sun, The Los Angeles Free Press, Oui Magazine, New West, and many, many more. A published novelist and a filmed screenwriter, Mr. Williams eschews the decadence of Hollywood for the simple, wholesome goodness of the plain, honest people of the land. He enjoys Luis Buñuel documentaries immensely.
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2 Responses to Why Judges Serve For Life

  1. Hart, great post. As was William’s comment. I don’t believe the framers ever envisioned a justice or judge being appointed to the federal courts and serving for 30 years or more (as William notes), mainly because the judiciary and an appointment to it, was considered to be the culmination of a career. And also because the average lifespan back then was somewhere around 40.

    A judicial appointment was considered a capstone, if you will, that only the most seasoned and experienced (read *older*) lawyers would be appointed. The idea of plucking someone from judicial obscurity in their youth and putting them on the court for *life*, just to try and permanently alter the ideology of the court for decades after a president is dead, is something started only the 1980’s under Reagan.

    Some on the left even argue that Clinton’s biggest mistake was putting justices already in their 60’s on the court, rather than going the Reagan/Bush route and putting someone with far less experience.

  2. Thanks, Todd. And I agree. I think that in order to understand the mess that’s been gotten into, we need to understand how we got there.

    Any number of fundamental assumptions that underlie the Constitution have been made obsolete or have been completely altered by the passage of time. We’re not Jefferson’s Yeoman Farmers, there is no longer “MORE LAND.” You can’t build a fire in the woods. You can’t shoot a buffalo. Daniel Boone didn’t worry about satellite surveillance and infrared night vision.

    But it’s important to understand WHY they did what they did, even if we have to find new ways to accomplish what they did.