A Rotating Federal Judiciary?

May 12, 2010

Fixed terms for Supreme Court justices would likely violate Article III of the Constitution, which provides that all federal judges “shall hold their Offices during good Behaviour”—i.e., for life. No matter how generous we made the pension awaiting the judge at the end of the term, any proposal that forced judges out of their “Offices” by any process other than impeachment could not be instituted by statute. A constitutional amendment would be necessary.

But interesting proposals have been made to reform the judiciary and sidestep the constitutional roadblock. One is to create rotating terms among the federal appellate courts. Under such a proposal, circuit court judges would rotate up to the Supreme Court for a limited term (7-12 years, say), and then, when the term is up, they would rotate back to their “home” seat on the circuit court.

The validity of a rotating judiciary proposal turns on the constitutional meaning of “Office.” If it designates the general status of holding an Article III judgeship, the rotation proposal should be valid—as long as the judge holds an active position somewhere on the federal bench. If, on the other hand, “Office” designated a particular seat in a particular court, the proposal would be unconstitutional. But the latter interpretation would be completely at odds with our history. The earliest Supreme Court justices had to double as lower court judges, “riding circuit” in between terms of the Court.

Perhaps the better question is whether we’d solve any problems that way. One goal of judiciary reform might be to relieve some of the political pressure on the confirmation process. A rotation system could do that, because it would lower the stakes for Supreme Court nominations—making them more like, say, nominations to the Fed.

On the other hand, every appellate nominee would be the equivalent of a Supreme Court nominee. That could actually raise the already-high stakes for circuit court nominations. It’s hard to say if, all things considered, that outcome would be a desirable one. It might be, but it seems to me that, if the problem you want to address is the confirmation process, the first order of business should be Senate reform.

Posted in Law Comment Tags:

Comments

Leave a Reply