Senator Ted Cruz has initiated the debate about term limits for Supreme Court justices. He is proposing that we amend the U.S. Constitution to establish an initial Supreme Court term of office with provision for that term to be “renewed” by voter referendum.
While I agree that term limits for U.S. Supreme Court justices are needed, I disagree that there should be extensions to an initial term via a voter referendum. First, I do not think justices should remain in power for longer than one brief term. And second, a “vote of the people” would further politicize the office by making the justices inclined to seek the favor of the electorate rather than focus on their job – which is to be impartial in weighing the evidence for cases within their jurisdiction.
I also think a Supreme Court term limits amendment should include much more than the length of the justices’ term of office. My proposal combines content from Mark Levin’s Liberty Amendments, ideas advanced by Michael Farris with the Convention of States project (conventionofstates.org), and my own recommendations.
The language I propose addresses the following concepts:
- shifts responsibility for the appointment process to the chief executive officers of the states (the governors), with confirmation by the U.S. House of Representatives, to provide a check on the federal government’s power over the Supreme Court and place appointment authority in representatives who are more closely accountable to the people;
- makes the term short enough that it is considered a “top of the career ladder position,” with the opportunity for numerous qualified individuals to gain this experience and serve our country
- makes the term short enough that activist or otherwise unqualified judges will automatically be removed from office before they cause too much harm to our country
- provides restrictions on income to ensure it is not a career advancement lure – but rather a position to be held with honor and the attitude of a public servant; restrictions on future compensation and benefits will also prevent the people from resenting those who have served as court justices
- adds provision for removal from office, with penalties, for failure to hold the position with impartiality, to deter justices from making political rather than legal decisions;
- applies the amendment to the entire federal judiciary, to end judicial activism in the federal court system and establish an impartial judiciary that is accountable to the people.
For your consideration and comments, here is my proposed amendment:
Amendment to Define Term Limits for U.S. Supreme Court and Federal Court Justices, and Measures to Ensure an Impartial and Fair Judiciary
SECTION 1. No person may serve as a federal district court justice or a U.S. Supreme Court Chief Justice or Associate Justice for more than eight years.
SECTION 2. When a vacancy occurs in the Supreme Court or federal district courts as a result of a justice’s completion of his term; death; incapacity to serve in office; resignation; or removal from office for reasons listed in Section 5, the following process shall be followed to fill such vacancy: The governors of the affected states shall nominate a replacement justice for confirmation by two-thirds of the members of the U.S. House of Representatives. For Supreme Court justices, the governors of all fifty states shall cooperate to select a nominee. For federal district court justices, the governors of the states under that court’s jurisdiction shall nominate the justice. Upon confirmation by a two-thirds majority vote of the U.S. House of Representatives, the governors’ nominee for Supreme or federal district court justice shall be sworn into office.
SECTION 3. Immediately upon ratification of this Amendment, Congress will rank the incumbent justices of the federal district courts and the U.S. Supreme Court in reverse seniority order. The term of office for justices who have already exceeded eight years in office shall end on December 31 of the year in which this amendment is ratified. The term of office for justices who have not yet served for eight years shall end at the conclusion of their eighth year in office.
SECTION 4. Federal district court and Supreme Court justices shall be compensated for their work during their term of office according to a pay and benefits scale defined and approved by Congress. No justice shall receive compensation for his position past the end of his or her term of office (i.e., no “lifetime” benefits or salary).
SECTION 5. The following actions shall be cause for investigation and possible termination of a federal district court or Supreme Court justice prior to the end of that justice’s term: Hearing a case or issuing a ruling on a case that is outside the scope of the U.S. Constitution, as written, and/or the scope of the U.S. Constitution’s enumerated or implied powers of the federal government; failure to recuse from hearing oral arguments or ruling on a case when the justice has known partiality in the case; failing to hear oral arguments or impartially consider information presented by both sides of a case; participating in partisan politics during the justices’ term of office; and immoral or criminal conduct while in office. Upon a letter of request to Congress by the governors of a majority of the affected states, allegations of any of the above-listed breaches of good judicial conduct shall be investigated by a committee convened for that purpose and comprised of the attorneys general of the states under the jurisdiction of the justice being investigated. For Supreme Court justices, the investigations committee shall consist of the attorneys general from all fifty states. For federal district court justices, the investigations committee shall consist of the attorneys general of the states within the district justice’s jurisdiction. This investigations committee shall present its evidence to the governors of the affected states, who shall vote whether to retain or dismiss the justice. For Supreme Court investigations, the governors of all fifty states shall be privileged to vote. For federal district court investigations, the governors of the states within the district justice’s jurisdiction shall be privileged to vote. A two-thirds majority vote to terminate the term of office of a justice who has violated one of these tenets of impartiality and honorable service shall result in the justice’s removal from office and disbarment from practicing law in the affected states, and an immediate retrial of all cases where that justice ruled in a manner which resulted in the justice’s removal from office. Congress may also enact legislation to impose any of the following penalties on a federal justice who is removed from office: fines, imprisonment, and loss of accrued benefits (e.g., retirement). Section 5 shall apply to all justices who are serving as a federal district or Supreme Court justice at the time this amendment is ratified, as well as to all justices who are appointed to these courts in the future.
I realize that many people will want to discuss and develop an amendment to establish term limits for the Supreme Court. I encourage citizens to contact their Congressional representatives to express support for the federal court term limits ideas they agree with, and to share your own ideas. In addition, we need to ask Congress to exercise its constitutional authority to redefine the courts (for example, I believe Congress should reorganize the district courts to eliminate rulings by fewer than five justices) and remove categories of cases from the federal courts (for example, abortion restrictions enacted by the states under their 10th amendment rights).
Finally, given that Congress can’t even muster a veto-proof majority to approve the Keystone Pipeline project, I don’t have much confidence that Senator Cruz or anyone else in Congress will be successful at sponsoring an amendment to establish federal justice term limits. I would therefore contend that now is the time for “We the People,” via the Article V Convention of States process, to develop our own amendments to limit the power of the federal government and restore the balance of power between the states and centralized government.