The recent death of Justice Antonin Scalia was reignited a debate over whether federal judges should also serve only for a fixed period of time. A recent piece by Orin Kerr in the Washington Post explains why life terms might be a problem:
It’s often said that elections have consequences. But thanks to life tenure, elections don’t have nearly as much consequence as they should have on the Supreme Court. A President might have zero vacancies to fill or may have many. For example, during the four-year Presidency of Jimmy Carter, no Justice retired. Carter never made a Supreme Court nomination. On the other hand, in the four-year window from 1937 to 1941, seven Justices died or elected to step down. President Franklin Delano Roosevelt and the Senate of that era quickly filled all seven spots.In his next paragraph, though, Kerr gets to the heart of the matter: the ideological make-up of the Court:
If we all agree that the ideological orientation of the Supreme Court matters — which, for better or worse, undeniably has been in case in our collective memory — then I can’t see why that orientation should depend on how long a handful of people in their 70s and 80s can continue to serve. It would make much more sense to tie that orientation to the elected branches in some predictable and democratically accountable way.For many German jurists and students of law, this might seem out of place. Aren't courts suppose to be objective? Isn't a judge suppose to leave ideology out of the decision and simply apply the law? To understand the debates over Supreme Court appointments in the United States one must also understand that this idealistic view of judges is something of the past. Today, the make-up of the Court is as politically charged as any other controversial topic.
For additional views on this topic see here, here, and here.
