Monday, November 14, 2005

A Novel Concept

Here's a novel concept that I'm amazed the framers, in their near-infinite wisdom, left out of the Constitution: congressional and judicial term limits. The judiciary, along with a lack of term limits, doesn't even have set terms.

Once appointed they enjoy a seat on the bench as long as they wish, with the standard of "good behavior" and death as their only impediments. If found to be in violation of the standard of "good behavior", a judge faces impeachment by the House of Representatives and a trial in front of the Senate.

This is typical procedure involving the removal of a federal official in the three branches of government. In the House, removal of a representative requires a two-thirds vote. This is reflective of the case in the Senate, where a two-thirds vote is required for removal of a senator. The President, as executive, is "impeached" after a majority in the House of Representatives vote in favor of the "articles of impeachment". Then a two-thirds vote is required in the Senate to convict the accused.

Now in the case of terms, every elected official in the federal government is subject. The House of Representatives and the Senate can be elected to unlimited terms of two and six years, respectively. The President is limited, as of the 22nd Amendment (passed in 1951 after FDR made it into his fourth term), to two terms of four years.

Currently only one member of Congress, Senator Tom Coburn (R-OK) is subject to self-imposed term limits. He pledged to serve no more than three terms in the House, which he fulfilled, practice medicine for four subsequent years, and serve two terms in the Senate. He is currently serving in his first Senate term.

It was decided in 1995 in the Supreme Court case of US Term Limits, Inc., v. Thornton 514 US 779, by a 5-4 ruling, that states cannot impose term limits upon their federal representatives or senators. Therefore the only way to impose term limits on these officials would be to pass a constitutional amendment. This action was pursued, in accordance with the Citizen Legislature Act of the Contract With America, after the Republicans regained a majority in the House in 1994. However, the measure failed to receive the required two-thirds vote (290 votes) in the House of Representatives and has since lost popularity.

Just about everyone who agrees with the imposition of term limits says that "members [of the legislature] who stay too long lose touch with their constituents." Seeing as this requires actually having terms to begin with, I'll return to my initial argument that judges be subject to terms of office.

Judges appointed by the President to serve on the federal district courts and courts of appeals enjoy the privilege of being unelected and unaccountable. As long as they maintain "good behavior" they can decide cases any way they want with nothing to fear. One of the reasons that there are terms in Congress is to hold legislators accountable for their votes and decisions. They were hired to do the job that they promised the majority who voted for them they would do upon election. At the end of their term, their re-election is basically a job evaluation by the voters. A bad job warrants firing, a good one: extension.

In the case of judges, the lack of accountability affords them the option of being as moderate or extremist as they please. They face no re-elections or referendums and many try to shield themselves from criticism. They view their place on the bench as tantamount to monarchial rule. Even British monarchs, however, had to face the criticism of Parliament and were subject to accountability.

Accountability is the magic word here people. It doesn't matter if a judge is liberal or conservative, moderate or extremist. As long as there is no accountability they are free to do as they please, and that is unacceptable in a popular democracy where the people hold those in power accountable for their actions.

And with that, here's my plan for judicial terms:
  • terms are set at five years for all federal judges (district court, court of appeals, and Supreme Court)
  • "re-election" is subject to a two-thirds majority vote since it should take a gross abuse of power to warrant a "NAY" vote.
  • votes are cast by the Senate alone, since judicial confirmations are only decided there.
  • a new cause for impeachment is established: if substantial and consistent polling shows the judge's approval drop below 30%, a simple majority is required in the Senate for impeachment.
This is pretty generous, but it's certainly a start.
The hardest part of the process will be getting any plan by the liberals that find their only recourse with the activist federal judiciary. As long as there is at least a base level of accountability in the judiciary, we will begin to see marked improvement.

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