Giving a person a government job for life is an odd event in a democracy. Members of Congress and the Executive can stay in power only as long as they can convince voters to reelect them. Further, term limits exist in both the federal system (for presidents) and in some states (for elected officials) to ensure turnover for certain kinds of jobs.

Yet in the United States, under Article III of the United States Constitution, a small number of jurists (“Article III judges”) are nominated by the President and confirmed by the Senate. Their independence is bolstered by guarantees of a job and salary protection for life. Current as well as historical examples make plain that the drafters of the Constitution were right to worry about the independence of judges and to craft mechanisms for insulation.

But other democracies—seeking to achieve the same goal—have selected different means, such as providing that their high court justices retire at a fixed age or serve for a fixed period of time. Both Australia and Israel require retirement at age 70, while in Canada the age is 75. Returning to the United States, a few states provide for life tenure but also set an age for retirement.

The constitutional courts of Germany and France rely on another system: fixed terms. In Germany, judges serve for a 12-year, non-renewable term. On France’s special constitutional body, members serve for a 9-year, non-renewable term. Similarly, in the United States, jurists on some specialty courts, such as the United States Court of Federal Claims, are selected through nomination by the President and confirmation by the Senate and empowered to serve for 15-year terms.

In contrast, Article III judges have neither a defined term of office nor an age for mandatory retirement. Therefore, Article III judges make their own decisions about when to vacate a seat to permit a new appointment. No laws currently constrain the potential for opportunistic political behavior by judges to time their retirements to maximize the power of the party in office.

How long do people actually sit as life-tenured jurists? For the first 20 years of this Republic’s life, between 1789-1808, justices on the Supreme Court averaged 13 years in service. Lower court judges averaged between about 10 to 15 years in service. In contrast, between 1989 and 2000, the average term for Supreme Court justices doubled, to about 26 years. For the lower courts (again on average), judges serve between 18-22 years before opening a seat for another life-tenured appointment. And, as is familiar, the current Chief Justice has held his position for more than 30 years.

Many factors may account for the growing length of service. More people are appointed as judges, some at earlier ages, and life spans have been growing. (Indeed, being a federal judge may even be good for one’s health.) Further, a trend has emerged in which judges serving at a lower court are promoted to a higher court—making for a career ladder in judging and longer terms of service.

Can anything be done about the pattern that has developed? The text of Article III states that the “judicial Power of the United States” shall vest in courts with judges holding “their Offices during good Behavior.” No text directly addresses the question of a uniform retirement age. Reinterpretation of what constitutes “life tenure” is therefore possible, just as over this past century, reinterpretation has occurred about how much of the “judicial power of the United States” shall vest in courts with judges holding their office “during good Behavior.”

In the early part of the twentieth century, the Supreme Court was loath to permit too much devolution of the “essential attributes of judicial power” and insisted on access to life-tenured jurists to reevaluate “jurisdictional facts.” But by century’s end, the Court had reread Article III to enable the shift of significant amounts of federal adjudicatory power to non-Article III judges.

For example, in 1968, Congress (working with Article III judges) invented a new set of federal judges, then called “magistrates” and renamed in the 1990s “magistrate judges.” While the job was once conceived as a part-time task (with 450 part-time positions in 1971), today it is primarily a full-time job, held by more than 470 people. Similarly, in 1984, Congress created another category, bankruptcy judges, who today number more than 330.

Magistrate and bankruptcy judges serve for fixed and renewable terms of 8 and 14 years respectively. Both sets of “statutory judges” are appointed by the “constitutional” life-tenured judges, with district court judges selecting magistrate judges, and the appellate courts appointing bankruptcy judges.

Unlike Article III judges who have life tenure and protected salaries, Congress could abolish the jobs of the statutory judges and cut their salaries. Such an action is unlikely, given the degree to which statutory judges have become mainstays of federal adjudication. The bankruptcy docket exceeds a million filings a year, and magistrate judges deal with thousands of matters, both civil and criminal, annually.

Moreover, yet another cohort of non-life tenured judges, working in agencies, make thousands of decisions annually. About 1,400 Administrative Law Judges (ALJs) enjoy the protections of the Administrative Procedure Act, while several hundreds more (called “hearing officers” or “administrative judges”) are line employees doing adjudication for federal agencies.

Of the 3,000 to 4,000 non-life tenured federal judges, more than 800 serve inside the federal courthouses around the United States. Magistrate and bankruptcy judges typically have their own courtrooms. Although the dimensions of those rooms may not be as large as those of district court judges, and statutory judges’ authority is also not identical to that of life-tenured judges, the powers of the two kinds of judges increasingly overlap. For example, magistrates can preside, with the consent of the parties, at civil jury trials. Both magistrate and bankruptcy judges have forms of contempt powers. And bankruptcy judges sit in panels to provide appellate review.

In fact, more non-life tenured judges (bankruptcy, magistrate, and administrative law judges) render judgments on trial level courts and in agencies on federal claims of right than do life-tenured judges. Even within the federal courts, in a few federal district courts, more magistrate judges serve than do life-tenured judges.

In short, Article III has been reread to permit devolution of a great deal of adjudicatory power to non-life tenured jurists. Article III could similarly be reinterpreted to require guaranteed terms yet also to permit a mandatory, statutorily-fixed retirement age.

Given the age of current jurists and other legal rulings, that interpretation may not occur in the near future. A plausible short-term alternative is to enact legislation creating incentives for judges to serve for shorter terms. For example, Congress could provide significantly better pension benefits to those judges who sit no longer than 15 years.

Further, as long as we continue to have so few life tenured positions at the top of the hierarchy of federal judges, the Senate ought to confer that power sparingly. Given the length of service of those appointed to the federal bench, the Senate should revisit its own rules to ensure that widespread support exists for all nominees who are confirmed. One option is to require, by Senate rule, that sixty votes be needed for confirmation. When judicial candidates can inspire forty-one senators to believe them ill-suited for lifetime appointment to the bench, it is wise to pause.

Had such a rule been in effect since the beginning of the Clinton administration and holding other factors constant, of dozens of nominees confirmed, three Clinton and three Bush nominees would not have been confirmed. Those data suggest that a super-majority rule would not be too onerous. Political energies are not often marshaled to oppose lower court judges. Indeed, one might be concerned that the Senate has moved too quickly to approve too many nominees.

In addition, the Senate could decline to review nominees other than those proposed through bipartisan merit selection procedures. Many states use forms of merit selection, and within the federal system, magistrate judges are selected through reliance on screening panels that include a wide range of persons. The track record of such processes commends their adoption.

Another approach would be to return to the statutes creating magistrate and bankruptcy judges and amend them, to provide life tenure for those judgeships. Were several more hundred judgeship positions open and the ranks of the appellate courts similarly augmented, the idea of the job of a federal judgeship as a “political plum” would diminish.

The more judgeships with life tenure, the less unique the job and the more the work of judging comes into focus, replete with its less than glamorous aspects. If done properly, adjudication is a labor-intensive job, requiring attention to facts and law at a level of detail that is sometimes tedious. We want candidates for judgeships to be committed to doing that form of work—much of it without high visibility yet having profound effects on individual litigants.

Current controversies make plain that some changes are needed. The constitutional guarantees of life tenure, salary protections, and due process go some way towards developing an independent and impartial judiciary. But text and legal doctrine are not sufficient.

Rather, judicial independence is an artifact of culture and practices that promote and cherish fair judgment, that respect individual judgments when rendered after deliberation, that accord judges sufficient discretion to make particularized decisions, that oblige judges to take responsibility for their decisions through explanation and publication, and that constrain judges when they move outside their role of adjudication. That culture is currently at risk. All branches of the federal government have to revisit their practices, internal rules, and interpretations of the Constitution to consider how to nurture an independent and wise federal judiciary, as it necessarily expands to respond to the demands for judging in the United States and worldwide.

April 15, 2004

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