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03/12/2005

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» http://legalaffairs.org/howappealing/031205.html#000732 from How Appealing
"The Becker-Posner Blog" examines the subject of judicial term limits: You can access Seventh Circuit Judge Richard A. Posner's discussion here, and Professor Gary S. Becker's discussion here. Some may recall that I asked Judge Posner if he was ready... [Read More]

» Posner on election of judges from PointOfLaw Forum
"[M]ost state judges are elected, and for a variety of reasons this is an unsatisfactory method of judicial appointment, used nowhere else, as far as I know, in the world," he writes. Judge Posner's blog partner Gary Becker, meanwhile, comments... [Read More]

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Karl Popper

I agree with Judge Posner that electing judges is bad idea. Having clerked for a state appellate judge, I got a chance to compare, though only for two years, the performance of appointed versus elected judges. There are a handful of elected judges who get returned to office time-after-time and who are flat-out incompetent; they get reversed for making trivial errors that would make a 1L blush. To be sure, some appointed judges are hacks. (I can think of a couple on the state supreme court.) However, I don't recall a single appointed judge whose decisions were consistently reversed.

A compromise position I'd like to see go into effect, but which I suspect has no chance of ever becoming a reality, is to require that potential judges -- whether the judges are appointed or elected -- make a minimum score on a test of judicial competence. For trial court judges, the test would ask, say, questions about basic rules of evidence and domestic law. Would-be judges who know the law would have no problem taking the test, and those who didn't would have an incentive to bone up on the law.

John

I don't see a need for tinkering with the system we have now at the federal level.

Judge Posner puts well the case for not limiting terms for District Court and Court of Appeals judges. Prof. Becker seems most concerned with Supreme Court Justices. While Prof. Becker's arguments against lifetime appointments are worth considering, equally sensible arguments can be made in favor of lifetime appointments, even if we agree that the Federalist argument (that such appointments keep the Justices apolitical) is wrong.

Two arguments that come to mind, for example, are (1) that lifetime appointments promote the rule of law by promoting the Justices' gravitas, in that service on the nation's highest court is the ne plus ultra of a legal career (setting aside as increasingly rare the exceptions of Justices who leave the Court to pursue other work), and (2) that lifetime appointments promote civil stability by allowing the Court to take certain issues off the front burner for an indefinite and more or less extended cooling-off period (i.e., until the Court's composition can be changed (at some unknowable future date), contending groups are forced to fall back on the tactic of attempting to change the minds of hundreds of legislators or millions of voters).

Given the balance of arguments, I see no reason to depart from what we have now, which I think works pretty well. Although Supreme Court cases may seem like epochal battles to academics and one-issue voters, few people are much affected -- materially -- by what the Supreme Court decides. Brown and Roe v. Wade and Miranda stand out in our memories precisely because of their atypical impact on the real, everyday lives of a lot of people. It's been a long time since we had a decision even approaching that level of impact. (I'm not counting Bush v. Gore because there the Court was faced with an issue that it could not safely have left undecided.) Indeed, those decisions of decades ago and their fallout have educated the Court about the perils of doing more than nudging things a little one way or the other.

David

Very interesting post. Judge Posner's position gives him a unique insight into the judiciary, which most of us do not possess. Though I do have some questions.

First, are incompetence and the "shirking" of duties truly serious problems in the judiciary? Most people who become judges are very motivated, accomplished lawyers who seek more than just financial rewards and who will give any job their all, regardless of the system of oversight. There is undoubtedly a range of judicial performance, but "shirking" is rarely seen as one of the core problems facing the judiciary.

Judge Posner also notes that judges are not disciplined for "erroneous" decisions. But what does "erroneous" mean? Basically every judge can read and apply the simple rules of procedure, evidence, etc. The controversies erupt in the small number of rulings on which reasonable people could disagree. Those make for interesting appellate issues, and we have an appellate system to correct such "errors." I do not see why a trial judge who guesses incorrectly about what an appellate court would decide should receive any penalty other than reversal. For the occasional judge who willfully ignores precedent, there are more extreme appellate sanctions, such as writs of mandamus and the transfer of the case to a different judge. Those sanctions are rarely invoked, demonstrating that blatant abuse of power by trial judges is an unusual occurrence.

I would note also that many erroneous decisions, especially at the trial level, result as much from bad lawyering as from bad judging. A trial judge has limited time to research issues and relies heavily on the arguments of counsel. If the lawyers miss issues or misstate the law, the judge is far more likely to make an incorrect decision. Perhaps our system needs to hold lawyers to a higher standard of conduct - I would be interested to see a post on that subject.

Finally, while I am not very familiar with the European system, I would not support making judges out of recent law school graduates. Judges should be chosen not just for their technical skill and intelligence but also for their experience and judgment. A recent law school graduate lacks the perspective of an experienced practitioner. In general, young lawyers are far more likely to be moved by technicalities and are far less creative in their thinking. With experience comes a deeper understanding of the law and of the world, which are important traits in a judge. This was once called "wisdom," though that term is rarely used these days. In my opinion, a wise judge is superior to a younger one, even if the youthful judge is technically brilliant.

cs

The biggest problem I see with term limits is the one you mentioned, that judges will see their appointments as stepping stones in larger careers and use their positions to either plot future directions or, at minimum, insure that their post-judicial options remain open.

What about some kind of required interregnum between the end of term-limited appointments and taking up work in the private sphere. Judges could be paid as though they still sat on the bench while using this terminal sabbatical to serve the judicial system as a whole by writing, lecturing, advising, administrating, mentoring etc.?

Robert Schwartz

"removable only for . . . complete incapacity (due for example to senility)"

I didn't think that a Federal judge could be removed for senility.

Larry

A couple points.

First, while the discussion is interesting, it's academic. Unless some trickery I'm not aware of is involved, the only way to set terms for Federal judges is a constitutional amendment, and I don't see that happening.

Second, I think we're avoiding the real problem, and attacking a false sympton. The "problem" is federal judges have a lot of power (perhaps more than they're meant to have) and constantly make decisions that displease large groups of people, both left and right. So a hopeful solution is to replace these judges faster. Seems to me you'll still get just as many unpleasant decisions, no matter how quickly the names behind them change.

The only slight advantage I see to revolving door Justices is as the country changes its politics, the courts may correlatively change a little faster along with them. (I suppose this is good.)

David

"The only slight advantage I see to revolving door Justices is as the country changes its politics, the courts may correlatively change a little faster along with them. (I suppose this is good.)"

Yes - I think that's the major argument for term limits. Also, a court that turns over a bit more often is more dynamic and will be infused with newer ideas. The public will also feel more connected to Justices who have been appointed within their memories (or lifetimes), thus increasing the legitimacy of the court in the public view.

MrGrumpyDrawers

I'm "only" 63. I know that my mental acuity is not what is was ten years ago. The idea of someone 83 or even 73 years old passing judgment on constitutional issues is laughable. Let's set the limit at three score and ten - that's been the traditionally recognized lifespan since Old Testament times. There's no more wisdom in the world now than there was then. Time to call it a day on the Oldsters - in the Courts and in Academia.

logicnazi

The case for term limits for Supreme Court Justices, as urged by Becker, is stronger. The Supreme Court is largely though not entirely a political court—almost a third branch of the legislature—and life tenure for politicians is profoundly undemocratic

I find this quick dismisal of the case where the arguments against term limits is the strongest entierly unconvincing. The question has never been what would be the most democratic way to govern our country or select judges the question is what is the best. The arguments against judicial term limits always at least implicitly suggest some of the benefit of tenure is provide a buffer against pure democracy (of course they smartly call this politization).

Moreover I find this sudden concern about how democractic the process is for the selection of judges somewhat disconcerting after the most democratic solution, direct election of judges, is dismissed as a bad solution earlier in the post. If it is acceptable to circumvent the will of the people for a better system in this situation why is it not even more important to protect the system in the case of the supreme court.

While other courts are primarily about fair application of the law the supreme court now has the principle duty of deciding what issues are beyond political debate by virtue of the constitution. This responsibility would be impossible to execute if the office became politicized or otherwise a democratic institution.

Moreover, I think the fear of a run away court is quite overblown. After all the court impinges the power of every voter and if the court ever came to be seen as completely out of control or unfair it could easily be ammended out of existance. Thus the institution of lifetime tenure forces the court to defend its existance as an institution by relatively fair judgements rather than as individuals by political manuevering. Since in fact the court, despite recent deciscions, is still the most respected institution of government it doesn't seem like the current system is so bad.

In short the lifetime tenure system for the supreme court offers the perfect solution. The country may in certain aspects benefit from the advantages of despotism (i.e. the enforcement of currently unpopular principles for long term benefit) and freedom from the tyranny of the majority but the lack of legislative or executive power obviates any real danger of a courttatership (is there a name for judicial rule?)

logicnazi

I realized that one might rightly point out that my strongest arguments for lifetime tenure are irrelevant if instead of lifetime tenure for supreme court justices we gave them a fixed term limit. This is true but this solution also gives no benefits in relation to any of the arguments presented.

If this fixed tenure is short and a supreme court judgeship becomes a stepping stone for other political offices all the problems with politization come tumbling back. Furthermore, judges will become much more closely linked with particular presidents and parties and their ability to develop independent judgement and wisdom will be decreased. The venerable tradition of judges who are able to consider the long term and change their opinion will be endangered.

On the other hand the longer the term limit ends up being the fewer benefits it can be said to bring. An 18 year long tenure as proposed by Becker (and I will discuss more there) makes it unlikely that the judges involved will ever run for office afterwards and hence avoids the objections above. On the other hand the longer the term limits the less 'democratic' the reform can be said to make the system.

Now there may be some valid arguments for supreme court term limits and I will discuss this in response to Becker. However, none of the concerns mentioned about shirking or even pressure to perform for a future job are relevant. Even the worst supreme court justice could support themselves well on speaking engagements and remain a respected public figure.

To be fair I don't think Posner meant to give a convincing argument on supreme court term limits but I just wanted to make the point that issue is far from clear from this discussion.

N.E.Hatfield

It's always a good thing to stand back and take a long hard look at what one is doing and why. Term Limits for Judges - Sure. Why Not? It seems to fit our current mania for the quick, the temporary, the cheap. this fundamental desire for constant flux and change. We see it in the development of "Sunset Laws" that dictate their own demise. We see it in the desire to remove representatives from office; whether they are capable or not. We see it in a consumer driven throw away society. Mania? Perhaps.

The desire to improve can be good, but it can also be a bad thing. There is an old saying that states, "The road to Hell can be paved width good intentions." Could term limits be one of these paving stones? There are undoubtedly shirkers and the like looking for a free ride. But as has been pointed out, there is a mechanism in place to deal with it. The power exercised by the Chief Judge and the court's Judicial Council. If there is a problem, then the problem lies with the mechanism, not the shirker. As for supposed "incompetence" or as the court would call it, mistake or error; there is also a mechanism in place for dealing with it as well. It's called the Appeals Process. So why the concern with term limits when there are mechanisms already in place to deal with these problems. Perhaps it may be a better solution to animate these mechanisms than by imposing term limits.

As for the supposed "age" problem, some have suggested that there is an attempt to pack the Court withe young like minded Jurists who will impact the judicial decisions and the Nation long after the President leaves office. Leaving behind an ideological legacy so to speak. To this, Harry Truman's observations may be insightful:

"Pack the Court? Can't be done. I've tried it. As soon as man puts on that robe he ceases to be your friend."

This may be the most powerful argument for judicial independence that life tenure imparts. That is, if we still believe in equality before the law.

As for the mental capacity that some believe diminishes with age; there was an old judge, as old as Methusela (at least in my young eyes) who told me once, "Always, always show the proper deference and respect to the Judges and their courts. But always keep in the back your mind the knowledge that ther will be times when in the pursuit of justice you will need to pull down Heaven itself." Such a gnomic statement made no impression on my young mind at the time. It was only years later, after gathering much more experience of life that it's truth and wisdom finally struck home. If there had been term limits, this deep wisdom would hve been lost at least 900 hundred years earlier.

As Justice Holmes so eloquently put it, "The life of the Law has been experience, not theory." By imposing term limits are we going to be cutting out what may be the very heart of American Law; Experince? I know of no other place to get experince except by actually doing something for a long period of time.

Term limits? I'm not so sure.

Palooka

"This may be the most powerful argument for judicial independence that life tenure imparts. That is, if we still believe in equality before the law."

How does "independence" translate into equality before the law? Certainly the Court was still "independent" when it decided Dred Scott and Plessy.

Matt

"Brown and Roe v. Wade and Miranda stand out in our memories precisely because of their atypical impact on the real, everyday lives of a lot of people. It's been a long time since we had a decision even approaching that level of impact."

I disagree with this statement. See United States v. Lopez, or United States v. Morrison, both from the 90's I think (taking a Conlaw class right now). In Lopez, the court found that a congressional statute outlawing guns near schools was unconstituional because Congress violated its power under the Commerce Clause. In Morrison, the court found that a domestic violence statute was unconstitutional because again Congress exceeded its power under the Commerce Clause and invaded the police power of the states.

These cases are life-and-death cases. Anyone living in a large city would recognize that guns are a very real threat. Domestic violence statistics show that this also remains a ubiquitous problem in our society.

I think the challenge we have as lawyers or judges is to encourage better substantive media discussion in this country. The only time I see constitutional (or for that matter, judicial)issues addressed in any detail is on the Newshour with Jim Lehrer or on NPR. The judiciary is an obscure area of the government for the average citizen. Since the average joe probably doesn't find these topics very interesting, maybe the networks (who use public airwaves, remember) and the cable media (which works for-profit) need to do a better job.

John

Matt -- I don't think anyone would dispute that gun control and domestic violence are "life-and-death" issues. But the Supreme Court's decisions touching on those issues, while doctrinally significant, had very little effect on our daily affairs (unless "we" are Congressmen). The Court did not say, for example, "From now on, every state is required to do x by the Constitution." Rather, it simply moved the line surrounding what Congress can do a little bit to one side. The laws that the Court struck down can still be made; they just can't be made by the federal government.

Looking at the comments as a whole, I'm getting the sense that the split may be between people who (like me) believe that the Supreme Court's modern value is mainly procedural (its being a respected body that can give the one, final answer on an assertion of right, the content of that answer being relatively unimportant) and people who believe that the Supreme Court's value is mainly substantive (its channeling and adding to our law in particular ways).

Jim Klein

Term limits are an excellent way to force judges to live under that rulings they make.

But, perhaps term limits would not be so necessary if the judicial system was organized as Professor Posner suggests. A separate educational and experience program would nurture the arbiters of our laws, weed out incompetents, and reduce conflicts of interest.

I would add to the above suggestions that judicial students are required to amass credit hours by serving on juries for the entire educational period. There is no better place to watch the legal process than from the jury box.

It's often not pretty.

Here in California, you must be a lawyer if you want to be a judge and they treat each other as colleagues rather than the adversarial approach which would be justified by the incentives in the legal system.

A lawyer has no incentive other than to take as much money from his client as he can. The judge should be there to stop this sort of thing, but they have no incentive either.

Too many times we've seen lawyer's incompentence or misconduct ignored, or lightly punished, when a truly independent judge would slam them with a huge fine and bar them from the courtroom.

Instead, we get endless delays wasting both the court's time and the participant's money.

There is a clear conflict of interest when a lawyer becomes a judge, and it would be remedied if the nation banned lawyers from the bench.

N.E.Hatfield

Palooka, Where is the equality, when the judge is already on someones side or in their pocket?

Hope this helps.

Oh, BTW, Justice Taney headed south when the Storm broke out.

Matt

John,

I think your framing of the comments here is quite interesting. I do indeed tend to view the Supreme Court as a substantive rather than a procedural body. My understanding is that the SC is procedural in the sense that it provides a litmus-test of sorts for law that is dictated very much by the Constitution, and one could argue that this is formulaic and irrelevant in terms of the substantive law because the court does not address the substantive law itself (content), but rather whether that contents merely procedurally lines up with the guidelines established in the Constitution.

My argument would be that although the court is indeed procedural, the results of those procedural mechanisms are changes in substantive law-making (not laws, as you correctly point out) by the legislatures. The content of SC decisions is important because it acts as a limiter or expander on the freedom of the legislator. This in turn affects what laws are made, and what behavior of the public is restricted or permitted under the law.

Regarding the cases I mentioned, you stated that the laws can still be made by the legislatures. That's very true, but there is a great difference between federal and state laws in the practical political sense. It seems to me that more people "notice" when a federal law is passed (at least in terms of criminal cases), and that juries would take their roles more seriously if they are in a federal court as opposed to a state court. I haven't had much experience in the courtroom so I could be mistaken.

Matt

One more thing - to bring our discussion into the one framed by Judge Posner's post, I think that terms limits are very appropriate because I see the Supreme Court as an active political body (their ability to influence substantive law-making is evidence of this). Because each justice has his or her particular political preferences, I don't believe that term limits shield the justices from the political realm but rather ensure that entrenched political views will have an effect on law-making without any accountability to the people. I find this to be very undemocratic. Given the nature of expertise required in determining the law, I still support appointment by the executive, but terms for life appears to be too great a concentration of power. They don't have to be short terms but with increased longetivity, as Judge Posner points out, we could be in for a long ride in the future (potential terms of 40, 50 years?)

TheJew

Sure, France has a simple judicial system. That’s because I can sum it up in a sentence: What the President says, goes. I mean they can take away the Muslims’ hijabs for goodness sake! Dictatorship is a very clear judicial system, um, I guess?

But beyond the peculiar example of France, there may be some reason that almost all of Europe, except England, has a simple, almost childlike, “cut and tried” system. I mean, it seems as if these judicial systems have hardly been around long enough to be continually reformed by the turbulent forces of history. It couldn’t possibly be that this is because none of those systems have been around longer then sixty years, and a lot of them are less then fifteen years old. Could it? I mean, is there some historical event that could possibly explain a relatively blank “legal doctrine” canvas in all European countries except England some (historically relatively) short time ago?

On a separate issue, while you can’t incentivize judges without removing their independence, you can sue in your own behalf for just compensation, utilizing your judicial branch’s dictatorial powers to force higher pay if you’re feeling a pinch in the pocketbook.

John

Matt, I agree with you entirely that the Supreme Court is an active political body. It can't avoid being political, because almost every issue it decides is situated "where the law runs out." But I don't think that matters, based on the Court's performance for the past 30 years or so. Its utility, as a court of last appeal, is essentially the same as that of a coin toss. It doesn't matter whether the answer the Court gives is correct; all that matters is whether the answer is sufficiently reasonable that the country will accept it, the same way the home team and the visitors accept the results of a coin toss.

To me, then, any change in the system that would detract from the Court's authority is presumptively a bad idea. Imposing term limits would simply reduce the Court's legitimacy for no compelling reason.

It would also impose significant waste, in the form of lobbying as the end of each justice's term approaches. Currently, there's no way of knowing when a justice will resign or die. But can you imagine that resources that would be spent in lobbying and public-opinion shaping if, say, we knew for certain that Rehnquist's term would end 2 years from now?

Don

has "cut and dried" really become "cut and tried"?

logicnazi

So we need to make sure we are careful with our terminology about this issue. In particular it seems that political is being used in two different ways.

The first sense of political is the sense in which all substantive government deciscions are political. In this sense of political the supreme court is inherently political as it does more than narrowly interpret laws and regulations.

The second sense of political is the sense in which cabinent positions or even a promotion in an office might be political. That is a deciscion or group is political in this sense if it is motivated or significantly affected by wheeling and dealing and bargain making between interest group. While the choice of a justice may be political in this sense the court does not appear to be political in this sense.

Now that we are clear on the distinction and realize that the worry is that term limits would make the supreme court political in the second sense perhaps we can be clear on the argument for term limits. As best as I can tell the argument is simply the supreme court is political hence it should be more directly responsive to the people, i.e. the people should have more direct control over substantive deciscions.

So why should we believe this? The US government after all was designed in many ways to do the opposite (only let the people control their elected officials indirectly). In fact the notion of constitutional government is at heart the idea that some substantive deciscions should be moved beyond the direct control of the people.

Even more puzzling why should we believe this principle just far enough for 18 (or 15 or 5) year term limits. If we really believe the principle that since the supreme court makes substantive deciscions it should be more responsive to the people why don't we take this all the way? Why not elect a new supreme court every 4 years?

Perhaps the claim is that at 15 years (let this stand in for your favorite number) we will have the 'right' balance between direct control by the people and the stablity and independence of the court. Or perhaps 15 years is just the right amount of direct control. But unless a reason is given why 15 years instead of 30 or life this isn't much different than saying you really really believe the term limit is better at 15 than at life.

Maybe I'm missing what the argument is supposed to be and someone can explain what part I got wrong but as it is I just don't see how *any* point has been made toward having term limits and certainly no point sustantive enough to overcome the cost of changing a working system.

Matt

Logic,

The way you frame the argument, my support for term limits is based on the following.

It is best to hold people in powerful positions accountable to others on some level because as it is often noted, power corrupts, and absolute power corrupts absolutely. Appointment for life to a national political office lends itself too easily to abuses of power. In a nation of 295 million people, isn't it strange that 9 people have so much authority? The executive branch has term limits, why shouldn't the Supreme Court?

TheWinfieldEffect

"The executive branch has term limits, why shouldn't the Supreme Court?"

Because, unlike the nationally-elected President, the Supreme Court is not a majoritarian political body that is supposed to waver with transient public opinion. It is an indepenedent body that interprets the fundamental law, which often requires spelling out the scope of fundamental rights that may abrogate the power of transient majorities whose interests are represented by the current memers of the Congress or the current President, all of whom were elected by the majority. The court cannot be counter-majoritarian precisely when it is supposed to -- in protecting our fundamental rights -- if its members are partisan hacks selected by the transient majority to do a temporary hack-job on constitutional precedent.

Even if a revolving door Supreme Court is not filled with partisan hacks, such a regime disrupts the finality of Court's decisions. Part of the institutional role of the Supreme Court is that its decisions, save where mistaken, are final. Term-limits only increase the incidence of mistakes.

Why? Because what actually fills the actual docket of the Supreme Court is all sorts of obscure cases dealing with bankruptcy, federal tax provisions, and odd economic regulation that most people simply don't care about, but upon which highly interested and adverse parties need a final decision. Judges get better with obscure cases like these when they have the opportunity to adjudicate many of them over time. An experienced judge who has handled a million cases dealing with casket-sellers in Oklahoma will handle it better than one who has just arrived on the court. Term-limits would maximize exposing parties to relatively inexperienced jurists, rather than minimize it.

Moreover, if the problem is that the Supreme Court is taking cases whose content are politically contentitious, then a jurisdiction stripping measure by Congress can easily narrow the Court's appellate jurisdiction, removing those cases from the Court's docket. Term-limits are wholly unnecessary.

And if we care that judges are secretly deciding cases on purely partisan rationales, and we disapprove of this behavior, the way to deal with the problem is not to exacerbate it by allowing for more political gamesmanship in the appointment of judges to the highest court in the land. The way to get members on the court to produce better decisions is to limit access to the court to a select and elite few who are allowed to remain there for life, so that if they make an error, they may recognize it and correct their future behavior, rather than boot them off the court and give their slot to another unreflective partisan hack who will exploit their folly, compound their error, and produce legal interpretation that is neither legal nor interpretation, but merely whatever the Cato Institute or MoveOn.org opines on the matter.

TheWinfieldEffect

"The executive branch has term limits, why shouldn't the Supreme Court?"

Because, unlike the nationally-elected President, the Supreme Court is not a majoritarian political body that is supposed to waver with transient public opinion. It is an independent body that interprets the fundamental law, which often requires spelling out the scope of fundamental rights that may abrogate the power of transient majorities whose interests are represented by the current memers of the Congress or the current President, all of whom were elected by the majority. The court cannot be counter-majoritarian precisely when it is supposed to -- in protecting our fundamental rights -- if its members are partisan hacks selected by the transient majority to do a temporary hack-job on constitutional precedent.

Even if a revolving door Supreme Court is not filled with partisan hacks, such a regime disrupts the finality of Court's decisions. Part of the institutional role of the Supreme Court is that its decisions, save where mistaken, are final. Term-limits only increase the incidence of mistakes.

Why? Because what actually fills the actual docket of the Supreme Court is all sorts of obscure cases dealing with bankruptcy, federal tax provisions, and odd economic regulation that most people simply don't care about, but upon which highly interested and adverse parties need a final decision. Judges get better with obscure cases like these when they have the opportunity to adjudicate many of them over time. An experienced judge who has handled a million cases dealing with casket-sellers in Oklahoma will handle it better than one who has just arrived on the court. Term-limits would maximize exposing parties to relatively inexperienced jurists, rather than minimize it.

Moreover, if the problem is that the Supreme Court is taking cases whose content are politically contentitious, then a jurisdiction stripping measure by Congress can easily narrow the Court's appellate jurisdiction, removing those cases from the Court's docket. Term-limits are wholly unnecessary.

And if we care that judges are secretly deciding cases on purely partisan rationales, and we disapprove of this behavior, the way to deal with the problem is not to exacerbate it by allowing for more political gamesmanship in the appointment of judges to the highest court in the land. The way to get members on the court to produce better decisions is to limit access to the court to a select and elite few who are allowed to remain there for life, so that if they make an error, they may recognize it and correct their future behavior, rather than boot them off the court and give their slot to another unreflective partisan hack who will exploit their folly, compound their error, and produce legal interpretation that is neither legal nor interpretation, but merely whatever the Cato Institute or MoveOn.org opines on the matter.

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