Though this morning’s Federalist Society panel opened on a somber note, the discussion on the topic at hand quickly got heated.
Federalist Society president Eugene Meyer greeted the crowd with a few words about Attorney General Michael Mukasey, who collapsed last night while giving a speech to the conservative legal affairs group.
“He had a good night in the hospital, and he is expected to be released today,” Meyer says. Meyer’s announcement was met with brief applause.
Then it was business as usual.
The assembled panel was set to debate whether Supreme Court justices should have lifetime appointments.
James Lindgren, a professor at Northwestern University School of Law, who co-authored “Term Limits for the Supreme Court: Life Tenure Reconsidered,” made a statistics-heavy argument that because justices are serving increasingly lengthy terms, non-renewable 18-year terms ought to be implemented. Under this proposal, every one-term president would get to appoint two justices, and every two-term president would get to appoint four. Lindgren contends this would help to avoid justices timing their retirements to affect the political balance of the court and older judges succumbing to mental decrepitude and the loss of physical stamina.
“Lindgren’s point is the kind of historical tone deafness that often comes up in these debates. He uses wooden data that are lacking in historical perspective,” responds Stephen Burbank, a professor at the University of Pennsylvania Law School. “The consequence of frequent appointments to the court is that it would quickly result in a crisis of legitimacy. The problem isn’t that the justices are serving too long; it’s that they’re not working very hard. They’re usually over in Europe lecturing. They’ve become poobahs.”
Burbank brought in his own data to refute Lindgren’s, which prompted moderator Judge J. Harvie Wilkinson III, of the U.S. Court of Appeals for the 4th Circuit, to interject that the debate was not going to devolve into a tit-for-tat over whose statisticians were better.
Joining Burbank’s position, that the status quo of lifetime appointments is working, was David Stras, a professor at the University of Minnesota School of Law. He argued that the “framers had a pretty good idea of what they were getting into.” He did propose making retirement more attractive so justices would more readily step down.
Lindgren’s argument for some kind of limitation on the tenure of justices found some qualified support from Charles Cooper, a name partner at D.C.’s Cooper & Kirk. Cooper says that lifetime appointments create “judicial tyrants” who should be able to be thrown out at the discretion of the people. Cooper didn’t quite support the notion of non-renewable 18-year terms, preferring a quasi-Jeffersonian proposal in which each justice would have to face an election of retention every five or six years.
“The people of this country understand the basic rule of law deep down in their gut,” Cooper says. “They should have the power to throw out tyrant judges.”