Revisiting the Appointment and Tenure of Federal Judges: Striking the Proper Balance Between Fitness and Ideology

Photo by Mark Fisher via Flickr

Matthew Marino, Associate Member, University of Cincinnati Law Review

I. Introduction

In the United States, scholars have long debated reforms for the appointment and tenure of federal judges.[1] Today, advances in medical science have resulted in longer tenures and later retirements for federal judges, challenging the traditional idea that age limits for federal judges are unnecessary because only few “outlive the season of intellectual vigor.”[2] President Joe Biden has refused to deny planned efforts to “pack” the Supreme Court, which refers to adding Justices to balance the spread of ideologies on the Court.[3] Prominent liberal Senators[4] have pitched court-packing as a way to neutralize the partisan influence of former President Donald Trump’s three Supreme Court appointees and over 200 federal district court and circuit court of appeals appointees to the federal court system.[5] This article will argue that packing the Supreme Court should not be used to neutralize the influence of partisan politics on the federal court system and suggest better ways to ensure a neutral appointment process for federal judges.

II. Background

A. The Appointment of Federal Judges

United States Supreme Court Justices, and judges who serve in the federal district courts and circuit courts of appeals are Article III judges, meaning they are appointed and hold office pursuant to Article III of the Constitution.[6] However, Article III of the Constitution establishes only the Supreme Court, leaving Congress the power to “ordain and establish” the lower federal courts.[7] Article II Section 2 of the Constitution authorizes the President to nominate Supreme Court Justices.[8] However, the practice has traditionally been that the President nominates, and Senate confirms all Article III judges,[9] which supports the separation of powers, as both the executive and legislative branch bring partisan and ideological influences to bear on the appointment process for federal judges.[10] Therefore, politics plays an essential role in appointing federal judges. However, Harvard Professor of Constitutional Law Vicki Jackson cautioned that partisan influence over the appointment process threatens judicial independence, potentially affecting the “quality of persons willing to be nominated or the range of perspectives represented on the bench,” diminishing the court’s ability to do their job well.[11] In other words, politics may dissuade moderate yet qualified lawyers from aspiring to sit on federal courts.

B. Life Tenure of Federal Judges

Article III Section 1 of the Constitution provides that federal judges shall hold office during good behavior, which effectively creates three justifications for removal: impeachment for bad behavior, resignation, or death.[12] The life tenure of federal judges, specifically U.S. Supreme Court Justices, has been the subject of renewed scholarly debate.[13] Judges shape, influence, and create law without executive or legislative oversight, leading many to believe they need more accountability through age limits, especially in the present day where longer life expectancies result in longer tenures for federal judges compared to when the Constitution was drafted.[14]

III. Analysis

Political battles over the appointment of federal judges are incompatible with preserving the federal court system as a neutral decision-making body.[15] This section will identify and discuss three ways to harness the partisan and ideological influences over the appointment process for federal judges, including: (1) court-packing; (2) tenure limitations for federal judges; and (3) merit evaluations prior to the nomination of federal judges. Instead of court-packing, the latter two reforms should be pursued in order to ensure a neutral appointment process for federal judges.

A. Court-packing

The most drastic proposal for judicial reform is court-packing, which refers to adding Supreme Court Justices to change its ideological makeup.[16] Because there is no constitutional requirement that the Supreme Court have nine justices,[17] court-packing could be achieved through Congressional legislation. After a landslide victory in 1936, President Franklin Delano Roosevelt (FDR) threatened to pack the Supreme Court when the Justices kept striking down his New Deal legislation.[18] However, after FDR’s proposal went public, the Court upheld several New Deal laws of the type it had previously found unconstitutional, prompting FDR to abandon court-packing.[19] Today, President Biden has not denied planned efforts to pack the Supreme Court.[20] Prominent liberal Senators have pitched court-packing to the American public as a “political power grab rather than non-partisan structural change”[21] aimed to dilute the influence of Donald Trump’s appointments to the federal court system.

Court-packing would only exacerbate the current partisan and ideological influences of the appointment process on the federal court system. Packing the Supreme Court would result in only short-term political victories, as new Presidents could theoretically continue to appoint more justices to instill their ideologies on the Court.[22] Academics have taken more tempered approaches to packing the Supreme Court, the most popular being to increase the Supreme Court to twelve justices, designating four seats for liberals, four for conservatives, and four for political moderates.[23] However, the Supreme Court only hears a limited number of cases each year.[24] Therefore, adding justices to the Supreme Court is unnecessary to address its caseload, which is light compared to most other courts in the U.S. Conversely, federal circuit courts of appeals and district courts hear many more cases each year than the Supreme Court,[25] so adding judges to the lower federal courts is necessary to address their heavy caseloads.

Court-packing should not be designed to achieve partisan victories on the Supreme Court but rather promote efficiency by equipping federal district courts and circuit courts of appeals with the necessary personnel to handle heavy caseloads. Congress has the power to create more federal judgeships.[26] As mentioned, Article III of the Constitution establishes only the Supreme Court, leaving Congress the power to “ordain and establish” lower federal courts.[27] Congress should pass legislation adding federal judges to the federal district courts and circuit courts of appeals in order to ease the burden of their heavy caseloads. 

B. Limits on the Tenure of Federal Judges

Many states have imposed age limits on their judges in order to reduce senility on the courts and provide a democratic check on the state’s court system.[28] Age limits are politically neutral and easy to understand.[29] Therefore, unlike court-packing, an age limit may allow for wider political consensus necessary to support a constitutional amendment.[30] However, this approach may encourage Presidents to appoint younger and less qualified judges in order to have a more lasting political impact on the federal court system.[31]

The “race-to-the-youngest-qualified” dilemma can be prevented by terms limits.[32] A popular term limits approach involves staggered, eighteen-year, nonrenewable term limits for Supreme Court Justices.[33] This proposal would guarantee that each President is able to have an impact by appointing a set number of Justices per term.[34] Term limits for all federal judges would allow Presidents to wield equal influence over the federal court system depending on how many terms they serve. Establishing term limits for federal judges would require the more strenuous constitutional amendment process, as Article III provides that judges shall hold office during good behavior, which has always been interpreted to preclude term limits.[35] However, term limits would preserve the nine-member court and allow each President equal influence over the federal court system, both of which are partisan-neutral goals that could achieve the national consensus required to support a constitutional amendment.[36]

C. Merit as a Controlling Factor in Appointment

Prior to 2001, the American Bar Association (ABA) played an influential role in the nomination of federal judges by prescreening nominees before nominations were made public and presented to the Senate.[37] An ABA Committee would examine a candidate’s legal writing, interview a number of lawyers, judges, and educators who knew the candidate, as well as members of professional organizations in which the candidate was involved.[38] For Supreme Court nominees, the same inquiry was conducted but evaluated instead by the entire ABA committee as well as other practicing lawyers and law professors.[39] George W. Bush’s administration eliminated the ABA process given the ABA practice of taking public positions on divisive issues that came before the courts.[40] Therefore, allowing the ABA an official role in judicial evaluation was found to be inappropriate given the organization’s biased views on controversial legal issues.[41] However, Temple Professor of Constitutional Law Laura Little argued the ABA’s expertise in scrutinizing potential nominees for federal judgeships is not shared by other interest groups, making it an appropriate body to prescreen judicial candidates.[42]

Nonetheless, given the ABA’s reputation as a left-wing advocacy group,[43] it is not an appropriate body to conduct fitness examinations of prospective federal judicial nominees. Therefore, like court-packing, granting the ABA a renewed role in the appointment process for federal judges would only exacerbate the already-existing partisan and ideological influence over the current process. Rather, either a bipartisan commission or committee of federal judges should be established to objectively evaluate a nominee’s merit, outlining a nominee’s contribution to legal scholarship, judicial decision-making record and tenure, and other factors relevant to a nominee’s fitness to be a federal judge. This information should be published and made widely accessible so the public can better scrutinize the appointment process for federal judges. Objective merit evaluations of nominees would also be useful to news organizations reporting on the appointment process for federal judges. Further, with access to objective merit evaluations, consumers of the news will be better equipped to assess information concerning the fitness of individual federal judge nominees.

IV. Conclusion

While political influence over the appointment of federal judges raises concerns surrounding the integrity of the federal court system as a neutral decision-making body,[44] court-packing is not a proper way to balance the spread of ideologies on the Supreme Court. Packing the Supreme Court would yield only short-term political victories, adding little value to a court with a light caseload. Instead, Congress should add new judges to the federal district courts and courts of appeals to address their heavier caseloads.

Establishing term limits for federal judges through a constitutional amendment is the best way to harness partisan influence over the appointment process of federal judges. Term limits are partisan-neutral, allowing Presidents to wield equal influence over the federal court system and Supreme Court. Therefore, term limits may achieve the national consensus required to support a constitutional amendment. Additionally, a neutral body of judges or lawyers should be established to conduct objective merit evaluations of federal judge nominees so the public can better scrutinize the appointment process.

Although court-packing has allure as a strategy to achieve short-term political victories, the integrity of the federal court system will be better preserved by more sustainable reforms designed to ensure a neutral appointment process for federal judges, such as term limits and objective merit evaluations.

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[1] Christopher S. Emmanuel, Out with the Old: The Renewed Case for Age Limits on the U.S. Supreme Court, Soc. Sci. Res. Network 4 (February 10, 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3783275.

[2] Id. 

[3] Id. at 5.

[4] Burgess Everett & Marianne Levine, 2020 Dems warm to expanding Supreme Court, Politico (March 18, 2019), https://www.politico.com/story/2019/03/18/2020-demo- crats-supreme-court-1223625.

[5] John Gramlich, How Trump compares with other recent presidents in appointing federal judges, Pew Res. Ctr. (Jan. 13, 2020), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/.

[6] Vicki V. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95 Geo L.J. 965, 970 (2007).

[7] Andrew Nolan & Richard M. Thompson II, Congressional Power to Create Federal Courts: A Legal Overview 1 (Congressional Research Service, 7-5700, 2014) (citing U.S. Const. art. III § 1).

[8] U.S. Const. art. III, § 1.

[9] Jackson, supra at 967 n.18.

[10] See Id. at 970.

[11] Id. at 985.

[12] Emmanuel, supra at 4 (citing U.S. Const Art. III, § 1).

[13] Id.

[14] Jackson, supra at 997.

[15] See Id. at 973.

[16] Emmanuel, supra at 5.

[17] See U.S. Const. art. III.

[18] FDR’s “Court-Packing” Plan, Fed. Jud. Center, https://www.fjc.gov/history/timeline/fdrs-court-packing-plan.

[19] Id.

[20] Emmanuel, supra at 5.

[21] Id. See Burgess & Levine, supra note 4.

[22] See Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, The Heritage Found. (Oct. 5, 2020), https://www.heritage.org/courts/commentary/why-court-packing-would-be-devastating-our-republic.

[23] Emmanuel, supra at 6.

[24] See Federal Judicial Caseloads, Fed. Jud. Center (2016), https://www.fjc.gov/history/exhibits/graphs-and-maps/supreme-court-caseloads-1880-2015.

[25] Judiciary Makes the Case for New Judgeships, U.S. Courts (June 30, 2020), https://www.uscourts.gov/news/2020/06/30/judiciary-makes-case-new-judgeships.

[26] Nolan & Thompson, supra note 7.

[27] Id. (citing U.S. Const. art. III § 1).

[28] Emmanuel, supra at 5.

[29] Id. at 2.

[30] Id. at 3.

[31] See Id. at 5-6.

[32] Id. at 6.

[33] Id. at 6.

[34] Id. at 6.

[35] See Jackson, supra at 991.

[36] Emmanuel, supra at 6-7.

[37] See Id. at 978. 

[38] Laura E. Little, The ABA’s Role in Prescreening Federal Judicial Candidates: Are We Ready to Give Up on the Lawyers?, 10 Wm. & Mary Bill Rts. J. 37, 41 (2001).

[39] Id. at 42.

[40] Id. at 37.

[41] See Id.

[42] Id. at 38.

[43] Carrie Campbell Severino, Yes, the ABA is Still a Left-Wing Advocacy Group, Ntl. Rev. (Sep. 27. 2019), ttps://www.politico.com/story/2019/03/18/2020-democrats-supreme-court-1223625.

[44] Jackson, supra note 10.