Impeaching Abusive Judges (1997)

Federal judges are about as popular today as auditors from the Internal Revenue Service. And for good reason. In case after case, federal judges are expressing contempt for democracy, overturning laws passed by state legislatures or adopted directly by the people through the initiative process. In recent years, federal judges have blocked the implementation of two California ballot initiatives, one that denies government services to illegal immigrants and one that bans racial and ethnic preferences. In Washington state and New York, federal judges have overturned state laws banning physician-assisted suicide. And the Supreme Court overturned a Colorado initiative to deny giving special legal preferences to homosexuals. The American people are asking themselves, why bother voting when the judiciary can knock down laws like so many bowling pins? Term Limits? In conservative circles, exploring ways to curb the activism of some of our federal judges has also become a hot topic. One suggestion that seems to be gaining currency is limiting the terms of federal judges, who now enjoy lifetime appointments. In fact, the 1996 presidential campaign of Bob Dole, of which I was a part, seriously considered making term limits the centerpiece of its critique of the federal judiciary and President Clinton's judicial appointments. After all, poll after poll show that term limits for judges are enormously popular with the American people. The Dole campaign ultimately rejected the idea. And so, too, should those interested in curbing the excesses of judicial power. For starters, imposing term limits on judges would be difficult. Article III, section 1 of the Constitution states that federal judges are to hold their offices during good Behaviour. Changing this provision would require a constitutional amendment. In recent years, Congress has proposed dozens of constitutional amendments on everything from balancing the federal budget and campaign spending limits to flag desecration and voluntary school prayer. Unlike many of these proposed constitutional amendments, which are mainly designed to overturn specific decisions by the Supreme Court, an amendment to impose term limits on federal judges would alter the fundamental structure of our system of government. Anticipating that the judiciary would be the weakest of the three branches, the Framers explicitly granted federal judges lifetime tenure so that they would be able to protect the Constitution against legislative encroachments. As Alexander Hamilton explains in Federalist No. 78, nothing will contribute so much as [lifetime tenure] to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. Is it smart to monkey with the fundamental mechanics of our constitutional structure? Do we really want to second-guess the Framers? Perhaps as important, term limits would not drain the batteries of activist judges. Imagine a 1-year limit. During this period, what would stop a federal judge from micromanaging a state prison system, raising property taxes to finance the overhaul of a school system, or striking down a ballot initiative passed by a popular majority? A term limit might prompt activist judges to rush to make their mark on history. Some argue that term limits should be linked to reappointment: When a federal judge's term expires, he or she would be eligible for reconfirmation by the U.S. Senate. But what would this accomplish? Anxious about reappointment, judges might tack their decisions to the prevailing political winds as the expiration of their terms grew near. Would judges resort to lobbying the Senate for reappointment? What kind of deals would be made? And what about a conservative judge, properly committed to the principle of judicial restraint, who must face reappointment by a hostile Senate controlled by liberals? For Shame! …