Life Tenure [Corrected]

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Paul D. Carrington, a professor at Duke University Law School, contributed to the New York Times Op-Ed yesterday a suggestion that we "remind our mortal [Supreme Court Justices] that they have a right to serve during good behavior, not for life."

While that may sound reasonable, Carrington appears to equate old age with bad behavior.

"Article III of the Constitution says only that federal judges, both of the Supreme Court and of lower courts, can retain their offices as long as they maintain “good behavior.” This seems to imply that the justices have a duty to retire when they are no longer fit to work full time. That duty is a rule in some countries: Britain, for instance, forces judges to retire at 70."

Carrington then continues his Op-Ed by criticizing Thurgood Marshall and William Rehnquist as "seriously unfit, hav[ing] held on to their awesome power and status long beyond what was reasonable."

Is it appropriate to equate old age with bad behavior? Doesn't our society frown upon age discrimination in employment? Should the federal courts be allowed to discriminate against judges based upon their age?

I find Carrington's solution to this supposed problem scarier than the problem he has described. Carrington suggests we remove the political freedom, created by life tenure, from the Justices by having them answerable to a council embedded in politics.

"Councils may then investigate and conduct hearings in confidence, and then perhaps order that at least temporarily no further cases be assigned to the judge whose conduct is in question. A council may censure a judge either privately or by a public pronouncement, or request his retirement. If a judge rejects a council’s advice, it could issue a statement to be considered by the House of Representatives that might initiate an impeachment proceeding."

Would it be any surprise that during years of a Democrat presidency, conservative Justices would find themselves faced with complaints about their "behavior"? Oh, and don't think I'm not suggesting the same will happen to progressive Justices during years of a Republican presidency. If the Supreme Court is not politicized enough for you already, just wait.

This is one can of worms, we should avoid at all costs, especially when age is the measurement of good behavior.