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Lloyd's Op-Eds

The Weekender - March 31, 2011

Tenure with extreme prejudice: federal judicial jobs for life

The Weekender’s last column (March 17) discussed some aspects of government employee tenure policies and the rigidity of the “Last In First Out” rule that handcuffs public school administrators as they try to retain talented new teachers while trimming their payrolls. These policies are being hotly debated in New York and most states, but there is little recognition and virtually no debate about the most extreme and inflexible form of tenure granted to a class of government employees. Every federal judge on the U.S. Supreme Court, the 13 federal Courts of Appeal and the 94 U.S. District Courts is tenured for life and can continue to sit or snooze into their 90s and beyond, if they so choose.

In several appeals that I have argued in the U.S. Court of Appeals for the Second Circuit, located in Manhattan, the three-judge panel included a nonagenarian jurist asleep even before I began my boring and soporific argument. In another of my cases in a U.S. District Court, I drew a centurion — and this was for a massive case, which seven years later produced what the second judge on the case (who replaced the 100-year-old jurist when he died) wrote was the largest settlement in federal court history. Every experienced federal court litigator can recount similar stories and does so not with a giggle but a wince.

Federal judges daily pronounce on the most important and controversial issues confronting our nation and its states and communities. Federal courts determined the winner of the 2000 presidential election. Several federal courts have either upheld or ruled unconstitutional the Obama Administration’s health care reform law, making it highly likely that yet another federal court — “The Supremes” — will resolve those conflicting decisions and have the final say on the constitutionality of part, or possibly the entirety, of the most important legislation enacted during the Obama presidency.

Just two weeks ago, another federal judge nullified a landmark settlement among millions of authors and Google. The Internet search Goliath had been sued because by copying and disseminating the authors’ works without permission, Google had engaged in arguably the largest theft of intellectual property in history. The landmark settlement was rejected by the judge only after pondering his opinion for more than a year. There is no important aspect of our lives that has not been vitally affected and often shaped by the rulings of federal courts. Because our Constitution’s sixth article makes that Constitution, and indeed all federal law, superior and supreme to any inconsistent law enacted by a state, unelected federal judges will continue to exercise vast powers as long as our union and the Constitution exist in their current basic forms. That same federal Constitution gave these judges their extreme form of tenure by providing that they “shall hold their offices during good behaviour,” meaning for as long as they want, while creating the merely theoretical possibility of removal for bad “behaviour.”

Since 1789, a total of only six federal judges have been removed from the bench after impeachment by the House of Representatives and trial and conviction by the U.S. Senate. Since that tiny number of successful impeachments in 222 years involved criminal conduct, it is sadly true that federal judges have jobs for life no matter how badly or lazily they do their work. The fact that most do their jobs well does not alter the point about the complete lack of accountability in the judicial branch of government.
How could the 18th century framers of our Constitution make such a glaring mistake in a document whose overall brilliance and durability is truly one of the greatest achievements of human endeavor. Part of that mistake came from a failure to think ahead. In most respects the Constitution was designed to and has proven to be remarkably flexible, with provisions such as the “equal protection,” “due process” and “commerce” clauses adapting to the changing needs of our nation. But with respect to life tenure for judges, the framers seemed to have been thinking about people like themselves with similar life spans and expectancies. The original federal judges were people (actually men, but also considered people) in the roughly 40-50 age range at time of appointment. In the late 18th century, the life expectancy a 50-year-old man was less than 10 years. The life expectancy of a woman like Elena Kagan and a man like John Roberts, each 50 when recently appointed to The Supremes was more than 30 years at the time of their appointment. The point of all this is not that there is any presumptive age when one is clearly too old for this job. In my estimation, the finest and most effective federal judge in the country is 90-year-old Jack Weinstein, who sits on the federal bench in Brooklyn. The point is that neither that judge nor any should be given a job for life, with the implicit invitation to do that vitally important job precisely in the manner and at the pace he or she chooses. That just ain’t right.

In the coming months, several federal judges will likely hear challenges to the 2010 Census numbers just released. The census will have vast ramifications for both of The Weekender’s communities in Chatham and New York City and for the entire state and nation. I chatted about them a bit with Mayor-elect Tom Curran and have already heard them attacked by Mayor Mike Bloomberg in the first salvo of an assault which may wind up in federal court. The process that led to the just released headcount and its implications for the Hudson Valley, now categorized as the world largest continuous “exurb,” will be the subject of the next Weekender column.

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