Recently I was doing some honest-to-goodness work editing North Carolina Lawyers Weekly, and I ended up getting sucked down an internet rabbit hole that convinced me that Article III of the U.S. Constitution, creating our federal judiciary, is in need of some amending.
I was reading opinions from the 4th U.S. Circuit Court of Appeals and realized that the trial judge in one case had been appointed to the bench by President Gerald Ford. That struck me as being rather extraordinary given that Ford left office in January 1977. The judge, John Thomas Copenhaver Jr., has since assumed senior status, but had been on active service until November 2018.
Nearly three-fourths of today’s federal judges are white, and nearly two-thirds are male, which is at least partly a function of the fact that some of them were appointed during the era depicted in “Mad Men.” Truly, the judiciary remains pale, male and stale.
Copenhaver was the final Ford appointee in active service, but I learned that as of today there are still eight Ford appointees on senior status, three on appellate benches and five in the district courts. And that’s the point where I took the plunge down that rabbit hole.
By funny coincidence, there are also three appellate court judges and five district court judges appointed by Richard Nixon who remain on senior status today. But even more surprisingly, one of Lyndon Johnson’s appointees, Jack B. Weinstein of the U.S. District Court for the Eastern District of New York, remained on senior status until earlier this year. Until his retirement to inactive senior status on Feb. 10, Weinstein maintained a full docket of cases. He is 98.
I certainly don’t mean to impugn any judges personally. But when an election that took place in 1964 produces a judicial appointment that still remains in effect in 2020, it puts an unhealthy amount of distance between the wide-ranging powers of the federal judiciary and the democratic mandate that grants the judiciary its legitimacy.
Famously, Article III of the U.S. Constitution provides that federal judges “shall hold their Offices during good Behaviour,” which has been read to mean that they serve for life unless impeached and removed from office by Congress. Like tricorner hats, dueling or the lyrics to “Yankee Doodle,” this might have made perfectly good sense in 1787, but it makes rather little sense today.
Except for tiny Rhode Island, no state still replicates the federal judiciary’s system of lifetime appointments. With good reason, the states that utilize judicial appointments combine them with term limits, age limits, retention elections or some combination thereof.
Article III, by contrast, creates perverse incentives for presidents and senators to try to game the system in order to confirm the youngest and most ideologically zealous candidates possible and thus maximize their long-term impact on the judiciary.
It also frustrates efforts to create a judiciary that resembles the population it serves. Nearly three-fourths of today’s federal judges are white, and nearly two-thirds are male, which is at least partly a function of the fact that some of them were appointed during the era depicted in “Mad Men.” Truly, the judiciary remains pale, male and stale.
In theory, lifetime appointments are supposed to offer the countervailing benefit of a judiciary shielded from political pressure, but it’s hard to see how judges would lose any measure of independence if they served during good behavior until reaching the end of, say, a 20-year fixed term. Age limits would serve the same function, but would still leave in place the incentive to discriminate against older, more experienced candidates, in favor of packing the bench for as long as possible.
The existing option for judges to assume senior status only minimally addresses this concern. Many senior judges, like Weinstein, continue to handle a full caseload, and in fact, senior judges typically handle about 15% of the federal courts’ workload annually. And because of Article III, it’s entirely up to the judges themselves as to when or if they move to senior status at all.
Although this theory has never actually been tested, it’s widely presumed that any move to institute term limits or age limits for federal judges would require a constitutional amendment. That’s typically an insuperable obstacle for any proposed reform that’s seen to benefit one political party or the other, as most proposals are.
But reining in lifetime judicial appointments shouldn’t, in theory, favor any party in the long-term, and the idea is gaining support in multiple political quarters. A lot of that is because of the Supreme Court, where the appointment process has degenerated into no-holds-barred political warfare and the court’s future may well be influenced in equal measure by the desires of the American electorate and one 87-year-old woman’s liver, but the same logic extends equally well to the entire judiciary.
Ultimately, the judicial branch, just like the executive and legislative branches, needs to have its democratic mandate refreshed frequently enough that it reflects the values of the citizenry it serves, not the citizenry that existed 50 years ago, or the success of gambits to manipulate the timing of vacancies. There’s no reason why someone appointed to the bench in 2020, or 2021, should potentially still be on the same bench in 2070.
David Donovan is editor-in-chief of North Carolina Lawyers Weekly and South Carolina Lawyers Weekly.