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Packages of Judicial Independence: The Selection and Tenure of Article III Judges

VICKI C. JACKSON* ABSTRACT


Selection and tenure rules are important parts of the packages of institutional designs that protect the independence of judges. The appointments process is a political one by constitutional design; it allows for a form of democratic participation, through elected representatives, in the selection of federal judges. Through a variety of rulessome constitutional, others a matter of Senate or White House practicethis process has worked in complex ways to accommodate concerns by the political branches about partisan afliation and ideology, competence, and the demographic mix of appointees. Although most nominees to the Article III courts continue to be approved by overwhelming majorities in the Senate, the rancor of the process in recent years has seemingly sharpened, leading to suggestions for change in the Senates voting rules on nominations. The political nature of the process in turn permits disputes to become contentious in ways, and through means, that could threaten the structures or culture of judicial independence in the Article III courts. For these reasons, the tenure rules assume special importance in safeguarding judicial independence. The long tradition that Article III judges are not removed from ofce based on disagreement with their legal decisions has been an important part of the package. A number of scholars have recently argued that the terms of Supreme Court Justices should be limited to eighteen years. Comparative experiences suggest that serious levels of judicial independence can be attained through long, nonrenewable terms. But such a change in an established and ongoing system, with an existing package of institutional features operating in a specic constitutional culture, would have ramications elsewherefor the conrmation process, for the internal dynamics of the Court, for its relationship to the lower federal courts, and possibly for the stability of lawthat require careful and cautious consideration. For example, if Supreme Court conrmations were to happen every two years, should the package include changes in selection procedure, perhaps to require a supermajority vote to conrm? Moreover, the Article III federal courts, headed by the Supreme Court, have functioned as the judicial anchors for the supremacy of federal law in a large country whose state and federal courts use many different selection systems (including elections for fairly short terms in some of the state courts) and which has managed to sustain a serious commitment to the rule of law. The federal courts are, in a sense, part of an overall package that is the U.S. court system, whose commitment to the rule of law under the Constitution has accommodated the states freedom to adopt different approaches to judicial selection and tenure, perhaps in part by assuring the strong independence of the Article III federal judiciary through salary and tenure provisions. Careful thought is thus required before changing one of the pillars of this ongoing system.

* Professor of Law, Georgetown University. 2007, Vicki C. Jackson. I am grateful to Sue Bloch, Michael Gerhardt, Jim Pfander, Judith Resnik, Bob Taylor, and Mark Tushnet for helpful comments on earlier drafts. My Research Assistants, Kate Couch, Andy Eberle, and Joe Gallagher, deserve thanks for their cheerful and careful work. Responsibility for any errors is mine alone. This Essay was written as a background paper for and presented at Fair and Independent Courts: A Conference on the State of the Judiciary, September 2006, and the research on which it is based was completed in the summer of 2006.

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. B. C. CONSTITUTIONAL FOUNDATIONS CONSTITUTIONAL CHOICES

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NON-ARTICLE III TRIBUNALS

I. ARTICLE III JUDGES SELECTION AND INDEPENDENCE . . . . . . . . . . . .


A. B. RECESS APPOINTMENTS AND PRESIDENTIAL POWER

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SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND EXCELLENCE

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C. D. E.

PUBLIC HEARINGS AND JUDICIAL PRECOMMITMENT

CAREERIST VS. INDEPENDENT LOWER COURT JUDGES? PARTISAN RANCOR AND FRICTION

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II. ARTICLE III AND JUDICIAL TENURE . . . . . . . . . . . . . . . . . . . . . . . .


A. B. C. LIFE TENURE AND IMPEACHMENT

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ALTERNATIVE READING OF DURING GOOD BEHAVIOUR?

LEGISLATIVE ABOLITION OF COURTS?; OTHER CONGRESSIONAL POWERS

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D. E.

RETIREMENT, DISABILITY, AND DISCIPLINE SALARY CONCERNS

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III. INSTITUTIONAL DESIGN AND INSTITUTIONAL CHANGE: REFORM PROPOSALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


A. B. CHANGING THE SENATES VOTING RULES TERM LIMITS/MANDATORY RETIREMENT

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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDIX II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTRODUCTION

Rules about selection, tenure, and removal are parts of the packages of provisions, or institutional designs, that inuence degrees and types of judicial independence and public accountability. The United States Supreme Court Justices, and the judges who serve in the federal district courts and circuit courts

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of appeals, are all Article III judges, appointed and holding ofce pursuant to Article III of the Constitution. Nominated by the President and conrmed by the Senate, they hold ofce during good Behaviour and their salary cannot be reduced once in ofce.1 On conventional understandings, they can be removed from ofce only by impeachment in the House and conviction in the Senate, by a two-thirds vote, for Treason, Bribery, or other high Crimes and Misdemeanors.2 Article III judges are not the only federally appointed judges but function as part of a much larger federal system of judging and justice that includes non-Article III federal judges and the state court judges. This Essay focuses on how the selection, tenure, and removal provisions for Article III judges relate to desirable levels of judicial independence. There are different meanings and degrees of judicial independence, different forms of accountability, and different balances between independence and judicial accountability. While all who act as judges are expected to exercise independent judgment, in the sense of being impartial as between the parties and not having a personal stake in the dispute,3 there is disagreement about how independent from the public, or from elected political branches, judges should be in interpreting and applying the law. There is, moreover, a range of accountability mechanisms, both within the federal judiciary (for example, by appeal or internal discipline) and by the political branches that appoint federal Article III judges, fund the courts, and enact the laws (including those concerning federal courts jurisdiction). There are ranges of political responses to unpopular decisions (including constitutional amendments) that may be more, or less, consistent with the decisional independence of judges. Judges who must stand for frequent election or reappointment have more reason to be concerned that making an unpopular decision will harm their livelihood than do judges appointed under Article III. Indeed, the decisional independence promoted by the tenure and salary protections of Article III is often admired, even as the consequences of this independence in checking other branches of government can be highly contentious. The selection and tenure rules for Article III judges affect both the decisional independence of individual judges and the institutional independence of the judiciary as a whole.4 But these selection and tenure rules do not function in isolation from other legal rules, including those governing the courts jurisdiction, when it is exercised, who can invoke it, who can change it;5 the nality of

1. U.S. CONST. art. III, 1. 2. U.S. CONST. art. II, 4. 3. See, for example, Tumey v. Ohio, 273 U.S. 510 (1927) and cases cited infra note 30. 4. Cf. John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353 (1999) (distinguishing independence of individual judges from dependence of the judiciary as an institutional matter on legislative decisionse.g., about jurisdiction and funding). 5. For an introduction to the vast literature on this subject, see generally RICHARD H. FALLON, JR. ET AL., HART & WECHSLER S THE FEDERAL COURTS AND THE FEDERAL SYSTEM (5th ed. 2003).

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the courts judgments, who they bind, and how judgments are enforced;6 judges salaries, court funding and control of administration, hiring and location of work;7 restrictions on judges nonjudicial speech or activities;8 and availability of pensions for disability or retirement.9 Legal structures alone, moreover, do not necessarily result in judicial independence; they are only part of the story. Some political scientists, for example, argue that effective competition in electoral politics is most keenly associated with independent courts.10 Important as well are the professional norms of lawyers and judges,11 popular conceptions
6. On the importance of nality, see, for example, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (holding unconstitutional a federal statute that in effect permitted one side of a private litigation to re-open nal judgments entered by the Article III courts); on enforceability, see, for example, Martin v. Hunters Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816) (directly afrming the judgment of the state trial court rather than remanding to the state appellate court which had previously challenged the Supreme Courts authority). On the bindingness of constitutional decisions, see Vicki Jackson, The Binding TATION CONSTITUTIONEffect of Constitutional Adjudication: A View from the United States, in LINTERPRE NELLE 246 (Ferdinand Me lin-Soucramanien ed., 2005). 7. See, e.g., Judith Resnik & Lane Dilg, Responding to a Democratic Decit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575, 158088 & n.17, 1599 (2006) (describing Chief Justice Tafts role in establishing better control over the administration of the federal courts through, inter alia, steps that led to the Judicial Conference of the United States); cf. DONALD P. KOMMERS, JUDICIAL POLITICS IN WEST GERMANY 8385 (1976) (describing the successful efforts of the German Constitutional Court in the 1950s to obtain control over its own budget and administration, including hiring authority over its law clerks); Mark Ramseyer, The Puzzling (In)Dependence of Courts: A Comparative Approach, 23 J. LEGAL STUD. 721, 72528 (1994) (describing political control of Japanese judges through job assignments, including to less favorable geographic locations). 8. See, e.g., CODE OF CONDUCT FOR UNITED STATES JUDGES Canon 3(A)(6) (2000) (A judge should avoid public comment on the merits of a pending or impending action . . . .); id. Canon 5 (A judge should regulate extra-judicial activities to minimize the risk of conict with judicial duties.); see also 5 U.S.C. app. 501, 502 (2002) (limiting outside income and prohibiting many activities that could generate outside income); Heather M. Clark, Note, The Supreme Courts Indecent Proposal: Repealing the Honoraria Prohibition of the Ethics in Government Act of 1978, 87 CORNELL L. REV. 1475 (2002) (discussing the honoraria ban under the Ethics Reform Act as it applies to federal judges); ABA MODEL CODE OF JUDICIAL CONDUCT Canon 3(B)(9) (2004) (A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness . . . .); cf. Robert Sharlet, Chief Justice as Judicial Politician, 2 E. EUR. CONST. REV. 32 (Spring 1993) (describing the difculties of the rst Russian Constitutional Court that arose, in part, from the extrajudicial speeches and activities of its rst Chief Justice). But cf. Republican Party of Minn. v. White, 536 U.S. 765 (2002) (holding unconstitutional, under the First Amendment, the states announce rule, which generally prohibited a candidate for elected judicial ofce from expressing views on contested legal issues which might come before the court on which the candidate sought to serve). 9. For a study of the impact of changes in the availability and rules for federal pensions on the retirement of Supreme Court justices, see ARTEMUS WARD, DECIDING TO LEAVE: THE POLITICS OF RETIREMENT FROM THE UNITED STATES SUPREME COURT 1619, 69210 (2003). 10. See, e.g., Ramseyer, supra note 7, at 722; Matthew C. Stephenson, When the Devil Turns . . . : The Political Foundation of Independent Judicial Review, 32 J. LEGAL. STUD. 59, 7784 (2003). Others suggest that economic development may be a precondition, rather than a result, of independent judiciaries. See, e.g., Daniel Klerman, Legal Infrastructure, Judicial Independence and Economic Development (Univ. of S. Cal. Ctr. in Law, Econ. & Org. Research Paper Series, Paper No. C06-1), available at http://ssrn.com/abstract877490. 11. See ABA MODEL CODE OF JUDICIAL CONDUCT Canon 3 (2004) (requiring judicial impartiality). For a somewhat idealized version of what those aspirations were, see ANTHONY KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 11621 (1993) (describing an ideal of how judges decide cases).

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about law and the political culture,12 and the capacities of all branches of government for self-restraint.13 But it seems plausible to assume, at least for present purposes, that selection and tenure rules play some role in supporting commitments to the independence of judging and the rule of law. Current debates question whether the selection process for Article III judges allows too much room for political partisanship and consideration of judges ideology, and whether the tenure rules promote too much of, or the wrong kinds of, judicial independence. These debates raise many questions. What is it that federal judges should be independent of? What is it that they should be independent to do? Do the range and substantive nature of the courts cases affect the forms and degrees of accountability most compatible with appropriate independence? How might the selection process affect judges independence from improper inuence or to perform their responsibilities under law? How do ideology and partisanship relate to an independent judiciary and our aspirations for what it should accomplish? How do existing tenure rules affect both kinds of judicial independence? Although these are too many large questions for a single paper, a brief look at the history and structure of the most directly relevant constitutional provisions may help set parameters for further analysis.
A. CONSTITUTIONAL FOUNDATIONS

In a sense, the question of what Article III judges were to be independent from is more readily answered. Judges were to be independent of popular passions and certain kinds of pressures from other branches of the government. These were the purposes of the provisions for life tenure, the high standard for removal by impeachment, and the clause that salaries cannot be diminished while a judge is in ofce. The harder question is what were judges to be independent to do? Some answers are: they were to be independent to judge according to law; they were to have the independence to interpret the law in order to render judgment; they were to protect minorities from popular passions that would violate their legal rights; and they were to check the other branches of government when they departed from the fundamental commitments set forth in the Constitution.14

12. See, e.g., Ramseyer, supra note 7, at 73031 (arguing that the hands off attitude of politicians to U.S. judges is not the result of constitutional provisions but of a political culture that does not approve of efforts to penalize judges for their decisions). 13. On judicial self-restraint, see John A. Ferejohn & Larry D. Kramer, Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint, 77 N.Y.U. L. REV. 962 (2002). 14. See THE FEDERALIST NO. 78, at 226, 22729, 23132 (Alexander Hamilton) (Roy P. Faireld ed., 1981) (arguing that the tenure provisions of Article III will help secure a steady, upright, and impartial administration of the laws; prevent encroachments and oppressions of the representative body; enable the courts to enforce, as is peculiarly essential in a limited Constitution, the Constitutions limits on legislative authority, such as that it shall pass no . . . ex-post-facto laws and to ascertain [the] meaning of the Constitution and other laws, because the interpretation of the laws is the proper and peculiar province of the courts; and help guard the Constitution and the rights of individuals from the effects of those ill humors, which . . . sometimes disseminate among the people themselves, and

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The proponents of the Constitution recognized that there were risks of according judges this kind of independence (as did their opponents). In Federalist No. 79, Hamilton acknowledged suggestions that there be a provision to remove judges for inability but concluded that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose.15 No human institution can avoid some defects, his comment suggests, and a provision for removal other than by impeachment would pose too great a risk of misuse, even if its absence allowed some lacking in ability to remain on the bench. He likewise rejected suggestions that a mandatory retirement age be adopted, as existed in New York.16 Public accountability of the courts was to be achieved in other waysin the political selection of learned lawyers with integrity, through Congresss passage of laws (including those controlling the federal courts jurisdiction), through the possibility of constitutional amendment, and, for judicial malconduct, through impeachment proceedings to remove.17 So, in a classic example of separated powers and checks and balances, the Constitution distributes authority with respect to the establishment and stafng of the courts between the Congress and the President,18 and species that it is the courts which exercise the judicial Power of the United States.19 Article III
which . . . have a tendency . . . to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community). Hamilton went on to argue that judicial independence was important not only with respect to infractions of the Constitution but also as an essential safeguard against the effects of occasional ill humors in the society, which may result in injury of the private rights of particular classes of citizens by unjust and partial laws. Id. at 231. In such cases, the rmness of the judicial magistracy will mitigat[e] the severity and conn[e] the operation of such law. Further, he wrote, knowing that the independent courts are there would operate[] as a check upon the legislative body in enacting laws. Id. at 23132. 15. See THE FEDERALIST NO. 79, at 234, 235 (Alexander Hamilton) (Roy P. Faireld ed., 1981). 16. Id. In this essay, Hamilton seemed to distinguish between insanity, which he described as a clear disqualication, and declining abilities through age. See id. For discussion of disabled judges, see infra Part II.D. 17. See THE FEDERALIST NO. 79, at 234 (Alexander Hamilton) (Roy P. Faireld ed., 1981). 18. Article I of the Constitution provides that Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court, a provision that should be read together with Article IIIs reference to one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish. Article I, Section 8 also gives Congress the power to make all laws which are necessary and proper to carry into effect the powers of other branches. Article II provides generally for appointments of federal ofcers, including federal judges, and specically gives Congress the authority to provide for a range of appointment methods for inferior Ofcers of the United States. Thus, it states that the President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Ofcers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. Article II also authorizes the Congress by law, to vest the Appointment of such inferior Ofcers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. Whether the judges of the Article III inferior courts could be treated as inferior ofcers so as to permit their appointment, for example, by other Article III Courts of Law has been discussed in the academic literature. See Appendix I, at n.16. The practice, however, has invariably been that the President nominates and the Senate conrms all Article III judges. 19. Article III provides that [t]he judicial Power of the United States, shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

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of the Constitution further provides that the judges of both the Supreme and inferior courts shall hold ofce during good Behaviour and species that their compensation shall not be diminished during their Continuance in Ofce. The need to secure the independence of the federal judiciary was a point of consensus in the Constitutional Convention. How to select those judges was, however, very much in controversy.20 Indeed, for quite some time over the long Convention held in Philadelphia in the summer of 1787, it appeared that the Senate would have exclusive authority to appoint judges. On June 13, members of the Convention adopted a proposal by James Madisonone of its most inuential membersthat the Senate select judges. In July, a proposal to give the power of appointment exclusively to the President was voted down. Until rather late in the drafting process, the power of appointment was vested exclusively in the Senate, out of fear of giving the President the dangerous prerogative of appointing the judiciary.21 Not until September 7 was the present rule agreed to; the Constitution was signed on September 17, 1787, and ultimately ratied by the states.22
B. CONSTITUTIONAL CHOICES

The selection mechanisms contemplated by the Constitution represent a distinctive set of choices. The Constitution does not, for example, mandate any self-replicating or professionally controlled selection process. Article III judges do not select, nominate, conrm, or appoint other Article III judges and have no formal consultative or advisory role.23 Rather, the process of judicial nomination and conrmation is allocated to two other branches of government. Moreover, unlike in some other systems, neither the President nor the Senate has authorityacting on their ownto select any members of the permanent Article III judiciary.24 Instead, the two political institutions of government must work together, in a system intended to impose signicant checks on the author20. See FALLON JR. ET AL., supra note 5, at 9. 21. SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN 56 (1997) (quoting George Mason). I am indebted to Professor Goldmans book, from which this description generally is drawn, and to his regular articles on federal judicial selection, which have been very helpful in preparing this Essay. 22. Id. at 6. 23. See supra note 18. Compare, e.g., COST. [CONSTITUTION] art. 135 (Italy) (providing that one-third of the judges of Italys Constitutional Court are chosen by the ordinary and administrative supreme courts (quoting a translation, available at International Constitutional Law, ItalyConstitution, http:// www.oefre.unibe.ch/law/icl/it00000_.html (last visited Jan. 3, 2007))). Under the United Kingdoms Constitutional Reform Act of 2005, which provides for the establishment of a Supreme Court, a judicial selection commission will recommend names to the Prime Minister, and the Commission is required to consult with senior judges (who are not on the Commission and not candidates for appointment) before making its recommendation. See Constitutional Reform Act, 2005, c. 4, 23, 26, 27 (Eng.); see also Explanatory Notes to Constitutional Reform Act, 2005, c. 4 (Eng.), available at http:// www.opsi.gov.uk/acts/en2005/2005en04.htm (U.K. Ofce of Public Sector Information). 24. Compare, e.g., GRUNDGESETZ [GG] [BASIC LAW] art. 94 (F.R.G.) (providing that each of the two houses of the German national legislature is to select one-half of the judges on the Constitutional Court); 1958 CONST. art. 56 (Fr.) (providing that one-third of the judges of the French Conseil

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ity of any one actor to make appointments to the life-tenured bench. Finally, one selection tool that the Constitution provides for some ofcesdirect or indirect election by the peopleis not used for the selection of judges. Rather, by allocating selection to the President, with conrmation by the less populist house of Congress, the Framers designed a system to select persons whose competence was believed best discernible through means other than popular elections.25 A political selection system, requiring agreement or compromise between the President and Senate, would appoint those with specialized competency in law.
C. NON-ARTICLE III TRIBUNALS

Other choices are reected in an array of federal tribunals, whose judges do not enjoy Article III tenure and salary protections.26 As discussed in Appendix I, our current federal judiciary is an amalgam of Article III judges, of other judicial ofcers appointed by Article III judges, of Article I or legislative tribunals in the territories and for specic subject matters (such as tax disputes, contracts or takings claims against the government, or veterans benets), and of administrative judges who sit in executive or administrative agencies to perform their adjudicatory functions.27 The non-Article III magistrate and bankruptcy judges, whose numbers come close to those of the Article III judiciary,28 now perform a large amount of adjudicatory work in federal district courts, in civil and criminal cases (though their decisions are in theory subject to review by Article III judges). Non-Article III, statutory federal judges may be

Constitutionnel are selected by the head of the Senate, one-third by the National Assembly, and one-third by the President). On the Presidents power to make recess appointments, see infra Part I.A. 25. Cf. 5 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 188 (Debate of June 13, 1787) (Jonathan Elliot ed., Washington, D.C., Taylor & Maury 1845) (Madison, objecting to appointment by the whole legislature because they are incompetent judges of the requisite qualications and would favor those to whom favors were owed but who lacked any of the essential qualications for an expositor of the laws); THE FEDERALIST NO. 78, at 226, 233 (Alexander Hamilton) (Roy P. Faireld ed., 1981) (stating that there can be but few men in society who will have sufcient skill in the laws to qualify them for the stations of judges and have the requisite integrity and arguing that life tenure is necessary to induce such men to leave their lucrative line of practice). 26. See Amer. Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828) (asserting that the legislative Courts established by Congress in the territories are not constitutional Courts, in which the judicial power conferred by [Article III of] the Constitution on the general government, can be deposited); see also Murrays Lessee v. Hoboken Land Improvement Co., 59 U.S. (18 How.) 272, 28486 (1856) (discussing public rights cases which Congress may or may not bring within the cognizance of Article III courts). The most famous Supreme Court case, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), involved a term-limited judicial ofce (justice of the peace of the District of Columbia). For a helpful discussion of Article I tribunals, see generally James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643 (2004). 27. See Appendix I. 28. According to statistical information made available through the Administrative Ofce of the U.S. Courts, in 2005 there were 678 authorized district court judgeships, 179 authorized judgeships on the courts of appeals, and 855 full-time magistrate and bankruptcy judges positions. See U.S. Courts, Judicial Facts and Figures, Table 1.1, http://www.uscourts.gov (follow link for library, then statistical reports, then Judicial Facts and Figures) (last visited Aug. 9, 2006).

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selected in a variety of ways; they are often subject to limited-term appointments; and they may be evaluated for re-appointment or continued tness.29 All judges are supposed to be impartial and fair-minded in judgment for reasons identied with the Due Process Clause and which may also inhere in the concept of judging itself.30 Article III judges, however, have added institutional protections, designed to secure a greater degree of independence from political, social, or economic pressures than is required by the Due Process Clause, a degree of independence often associated with the federal courts obligation to serve as a check on the actions of the other branches of the federal government. In contrast to the statutory federal judges, for active Article III judges there are no minimal qualications, no term limits, no regular evaluations of health or of whether the judge should continue in ofce.31 Appointment of an Article III judge is an investment in and gamble on the future, for she may sit for thirty or more years. And it is Article III judges who, in the end, have jurisdiction to review questions of constitutional and other federal lawfrom cases in the state courts as well as the non-Article III federal courtsand to say what the law is.32 For this reason, the balance of this Essay will focus on Article III judges, where the stakes in the initial appointment decision are the highest, and will consider in turn their selection, their tenure, and recent reform proposals.
29. See generally Appendix I. Professor Judith Resnik uses the term statutory judges to refer to the non-Article III federal judiciary. See Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924, 951 (2000); Judith Resnik, Uncle Sam Modernizes his Justice: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 GEO. L.J. 607, 614 (2002) [hereinafter Resnik, Uncle Sam Modernizes]. 30. On the Due Process Clause and impartiality, see, for example, Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986); Connally v. Georgia, 429 U.S. 245 (1977); Taylor v. Hayes, 418 U.S. 488, 50103 (1974); Gibson v. Berryhill, 411 U.S. 564, 57859 (1973); Johnson v. Mississippi, 403 U.S. 212, 216 (1971); Tumey v. Ohio, 273 U.S. 510 (1927). But the impartiality required by the Due Process Clause does not require Article III tenure and salary guarantees, or even, necessarily, a xed tenure of ofce. See, e.g., Weiss v. United States, 510 U.S. 163, 17980 (1994) (holding that the absence of xed tenure for military judges does not violate the Due Process Clause). For a somewhat controversial application of the idea of independence as a concept inherent in judging, see Provincial Court Judges Assn v. Manitoba, [1997] 3 S.C.R. 3 (Can.) (holding that judicial independence is an unwritten constitutional norm, applicable to all courts, which requires that an independent body be established to decide on any proposals to reduce provincial judges salaries because direct action by the legislature could threaten the judges needed independence). 31. In the 1990s, a federal anti-nepotism statute, derived from older statutes barring judges from appointing their relatives to positions in the court, was raised as a barrier to the Presidents nomination and Senate conrmation to an Article III judgeship of a sitting judges relative (William Fletcher, now a Ninth Circuit judge, and the son of Betty Fletcher, also at the time on the Ninth Circuit). In the wake of controversy over this proposed interpretation, the statute was amended and its prohibitions expanded. See 28 U.S.C. 458(b) (2000); see also 28 U.S.C.A. 458(b) (West 2006) and accompanying annotations; Michael E. Solimine, Nepotism in the Federal Judiciary, 71 U. CIN. L. REV. 563, 56567 (2003). The constitutionality of this prohibition, barring presidential nomination and Senate conrmation of one who is a relative of an Article III judge sitting on the same court, has not been tested, nor has the constitutionality of the political diversity requirement for the Article III judges on the Court of International Trade. See 28 U.S.C. 251(a) (2000) (limiting the number of judges from the same political party). For further discussion, including of annual caseload certication requirements to remain in senior status under 28 U.S.C. 371 (2000), see Appendix I, at nn.5, 6, 13. 32. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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Although the strong tenure protections generally provided to Article III judges would seem to go a long way toward insuring independence (both from political pressure and to judge impartially and according to the judges best understanding of the law), the number of highly contentious disputes in the nominations process, especially over lower court judges, has raised concerns in recent years about that processs effects on judicial independence.33 Notwithstanding strong tenure protections once appointed, how might the selection process impair desirable judicial independence? Here are some possibilities. Precommitments by nominees of how they would rule (for example, on large constitutional controversies) could compromise the appearance and actuality of impartiality and a nominees commitment to fair judicial process in the resolution of cases. Even without precommitments, a highly ideological or partisan selection process might convey the expectation that decisions should be in accord with political ideology, affecting the norms of judging according to law and also adversely affecting public views of the courts legitimacy; courts that lack public trust may be less able to function independently of popular passions. Moreover, an unpleasant selection process might discourage the best qualied from serving, yielding judges not competent enough to use their independence to judge according to law, and might also lead to escalations of political battles that affect judicial independence in other ways. Some also fear that a trend toward choosing Supreme Court Justices from lower courts could affect the decisional independence of lower court judges. Finally, recess appointments allow temporary judges to hear the most serious matters, including criminal trials, with short tenure and greater incentives to worry about the political branches evaluation of their actions. I discuss each of these points below.
A. RECESS APPOINTMENTS AND PRESIDENTIAL POWER

A recess appointment, according to Article II of the Constitution, is made by the President alone, during a Senate recess, and lasts only until the end of the next session of the Senate.34 For a judge to hold such a temporary position

33. See Sheldon Goldman, Judicial Conrmation Wars: Ideology and the Battle for the Federal Courts, 39 U. RICH. L. REV. 871, 871 (2005) [hereinafter Goldman, Judicial Conrmation Wars] (analyzing the highly contentious battles over the conrmation of federal court judges in the prior two decades); Sheldon Goldman et al., W. Bushs Judiciary: The First Term Record, 88 JUDICATURE 244, 262 (2005) [hereinafter Goldman et al., W. Bushs Judiciary] (noting claims, inter alia, that the Senate Judiciary Committee has ignored blue slip objections, violated Rule IV concerning minority right to continue debate, and ignored informal rules concerning the scheduling of nomination hearings that [v]iewed collectively . . . all work to lessen the ability of the minority party in the Senate to exercise an effective check on the conrmation process). 34. Recess appointments are authorized by Article II, Section 2 of the Constitution, which states: The President shall have Power to ll up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. The language of this provision raises several constitutional questions, including (1) whether the recess appointment power is available only for new vacancies which themselves happen for the rst time during a recess,

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seems in deep tension with the Article III requirement that judges exercising the judicial power of the United States hold ofce indenitely during good Behaviour. But many Presidents, including George Washington, have on occasion made recess appointments of judges to the Article III courts.35 President Eisenhower made three recess appointments to the Supreme CourtChief Justice Earl Warren and Justices William J. Brennan and Potter Stewart; each appointment was made shortly before national elections and each appointee was subsequently conrmed. Recess appointments have also been made to the lower federal courts. Thurgood Marshall, later successfully nominated to the Supreme Court as its rst African American Justice, received a recess appointment to the U.S. Court of Appeals for the Second Circuit in 1961 because his conrmation at that time would have been opposed by southern senators.36 A judge with a recess appointment, not yet conrmed by the Senate, has no job security beyond the next Congress, often only a few months. As a result, she may be tempted to look over her shoulder at the President (who must re-nominate her to a permanent position), the Senate (which must decide whether to conrm her), or both in carrying out her duties. Yet to interpret the Article II recess appointment power to apply only to executive branch positions and not Article III judgeships would be inconsistent with past practice. The constitutionality of recess appointments of Article III judges has not been decided by the Supreme Court. Criminal defendants tried before recessappointed judges have argued that it is inconsistent with the independence contemplated by Article III tenure and salary protections to permit a temporary judge, hoping for nomination and conrmation to a permanent position, to exercise important judicial responsibility in the interim. Thus far, such claims

and (2) whether any adjournment, even a brief intrasession one, counts as a recess for constitutional purposes. The Department of Justice has consistently taken the position that the recess appointment power is not limited only to vacancies that rst arise during a recess, but has taken different positions over time on whether the recess appointment power may be exercised only during intersession recesses, or are available during longer, or even shorter, intrasession adjournments or recesses. For helpful discussion of these complex constitutional questions, see Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 CARDOZO L. REV. 377 (2005), from which my account is largely drawn; see also Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 CARDOZO L. REV. 443 (2005). Because of the risks that recess appointments could undermine the Senates advice and consent role (if, for example, given to a person denied conrmation by the Senate and with respect to a longstanding vacancy), Congress has by legislation prohibited, with some important exceptions, paying a salary to recess appointees appointed to ll vacancies that existed for more than thirty days prior to the recess for positions where the Senates advice and consent is required. See 5 U.S.C. 5503 (2000). 35. See LOUIS FISHER, CONG. RESEARCH SERV., FEDERAL RECESS JUDGES 3 (Order Code RS22039, Feb. 2, 2005) (noting a 1983 Department of Justice report listing 309 individuals who had received recess appointments to Article III courts); Sheldon Goldman, Judicial Conrmation Crisis?, JURIST, Apr. 15, 2004, http://jurist.law.pitt.edu/forum/symposium-jc/goldman.php (asserting that over three-hundred federal judges received initial recess appointments since the Constitution was established). 36. See JUAN WILLIAMS, THURGOOD MARSHALL: AMERICAN REVOLUTIONARY 291, 294 (1998).

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have been largely rejected in the lower courts.37 Presidential restraint, reinforced by the Senates resistance and, perhaps, by the pragmatic reluctance of most lawyers to abandon existing positions for a temporary judgeship,38 has helped limit the number of recess appointments to Article III courts. Given modern practices (including public hearings on Supreme Court nominees), the political costs of a recess appointment to the Court would be very high. Indeed, in 1960 (after President Eisenhowers recess appointments to the Court), a Senate resolution was adopted providing that recess appointments to the Court should not occur, except under unusual and urgent circumstances, to avoid interference with the Senates advice and consent function and any appearance of compromise of judicial independence during the period of the interim appointment.39 From 1980 until 2000, no recess appointments to Article III courts were made.40 President Clintons recess appointment in 2000 of the rst African-American judge on the U.S. Court of Appeals for the Fourth Circuit, followed by President Bushs two recess appointments in early 2004 (one of them during a short intrasession recess and thus particularly controversial), have made clear that recess appointments to the lower courts remain a political possibility41though subject also to political
37. Although the challenges were ultimately rejected in the two courts of appeals which considered them on appeal from criminal convictions, one panel of the Ninth Circuit accepted the argument that recess appointees could not exercise Article III power, but it was overruled by a larger panel of judges sitting en banc. See United States v. Woodley, 726 F.2d 1328 (9th Cir. 1983) (nding that the exercise of judicial power by recess appointee is inconsistent with the Constitution and its requirements for the independence of Article III judges), vacated, 751 F.2d 1008 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F. 2d 704, 709 (2d Cir. 1962) (holding that Article II permits the President to appoint Justices of the Supreme Court and judges of the inferior courts to serve for a limited period, and accordingly that such judicial ofcers may exercise the power granted to Article III courts). A third federal court of appeals likewise rejected constitutional challenges to the intrasession recess appointment of Judge Pryor in the Eleventh Circuit. Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004) (en banc) (noting, inter alia, that plenty of judges in this country (for example, state judges) . . . do not have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, nor do they deny litigants due process on that account), cert. denied, 544 U.S. 942 (2005). Justice Stevens issued an opinion respecting the denial of certiorari, indicating that the constitutional questions were signicant and emphasizing that denial of review was not a ruling on the merits. Evans, 544 U.S. at 94243. 38. Cf., e.g., Hartnett, supra note 34, at 429 (reporting that Justice Holmes was clear that he wanted to remain on the state court bench until conrmed). 39. See FISHER, supra note 35, at 4 (quoting from the 1960 Senate resolution). 40. Id. at 6. 41. On President Clintons recess appointment of Roger Gregory to the Fourth Circuit after the Senate failed to hold hearings on his nomination, see id.; see also President Clinton Appoints Roger Gregory to the United States Court of Appeals for the Fourth Circuit, http://clinton4.nara.gov/WH/new/ html/Fri_Dec_29_135529_2000.html (last visited Jan. 3, 2007). On President Bushs recess appointments, in the face of Democratic opposition to the candidates, of Charles W. Pickering to the Fifth Circuit and William H. Pryor to the Eleventh Circuit, see FISHER, supra note 35, at 6. Because the recess power was evidently intended for times when the Senates recess prevented conrmation and effective government required the vacancy to be lled, recess appointments during short intrasession breaks, as in Judge Pryors case, are regarded as more problematic than others. Judge Pickering resigned his ofce, and, after serving as a recess appointee, Judge Pryor was eventually conrmed. See Neil A. Lewis, Bush Tries Again on Court Choices Stalled in Senate, N.Y. TIMES, Dec. 24, 2004, at A6; Sheryl

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constraints.42 Because a recess-appointed judge is dependent on both Executive renomination and Senate conrmation to stay in ofce, such appointments raise evident concerns for the independence of the interim appointee.43
B. SELECTION CRITERIA: IDEOLOGY, PARTISANSHIP, AND EXCELLENCE

The Constitution species no qualications for appointment as an Article III judge, though surrounding historical materials suggest an expectation that only highly competent lawyers should be appointed.44 But, competence is not inconsistent with partisan afliation or particular ideologies,45 considerations which have long played a role both in the selection of nominees by Presidents and in the Senates willingness to conrm. Ideological rejectionsthat is, rejections motivated by disagreement with the nominees or the administrations policies or legal viewsgo back to the rst administration of President Washington and the Senates rejection of his choice for Chief Justice (John Rutledge). In 1835, soon-to-be Chief Justice Taneys nomination to the Court was initially blocked because of partisan, ideological disputes of the Jacksonian period; Judge John Parkers nomination in 1930 failed because of opposition from civil rights and labor groups; and the nomination of Abe Fortas as Chief Justice in 1968 failed, in part, because of political opposition to the decisions of the Warren Court46

Gay Stolberg, Man in the News: A Different TimpanistWilliam Holcombe Pryor, Jr., N.Y. TIMES, June 10, 2005, at A14. 42. Democratic Senators responded to the 2004 appointments by threats to hold up votes on a number of other judicial nominees; this controversy was resolved, at least temporarily, by an agreement that no further recess appointments in the 108th Congress would be made and that twenty-ve of the Presidents judicial nominees would have oor votes. See FISHER, supra note 35, at 6; Neil A Lewis, Deal Ends Impasse Over Judicial Nominees, N.Y. TIMES, May 19, 2004, at A19. 43. For a recent argument that the Supreme Court should nd recess appointments to Article III courts unconstitutional, see Steve M. Peyser, Recess Appointments to the Federal Judiciary: An Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J. CONST. L. 61 (2006). But cf. Goldman, Judicial Conrmation Wars, supra note 33, at 901 (proposing that Presidents whose nominees do not receive a hearing in the Senate use recess appointments as a means over time to push the Senate to hold hearings on nominees). 44. See THE FEDERALIST NO. 76, at 416, 417 (Alexander Hamilton) (E.H. Scott ed., 2002) (arguing that the appointment procedures of Article II, Section 2, for presidential nomination and Senate conrmation, are designed to secure the selection of well-qualied persons of intrinsic merit and that the Senate conrmation requirement would exercise an excellent check on presidential favoritism and prevent the nomination of unt characters); THE FEDERALIST NO. 78, at 233 (Alexander Hamilton) (Roy P. Faireld ed., 1981) ([T]here can be but few men in the society who will have sufcient skill in the laws to qualify them for the stations of judges, and fewer still who unite the requisite integrity with the requisite knowledge.). These passages can be understood to express both hope for appointment of the most qualied and condence that the check of Senate conrmation would discourage nomination and prevent conrmation of those unt for ofce. 45. By ideology, one could mean a set of substantive results attributable to the Constitution and laws, or one could be referring to a methodology of interpretation, associated with some, but not necessarily all, of those outcomes. Inquiries as to interpretive methodology, though sometimes used as a proxy for substantive ideology, may pose fewer risks of creating the appearance of seeking, or giving, assurances or precommitments, because its application may be uncertain in particular cases. 46. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS 7475, 3031, 219 (rev. ed. 1999). Of course, ideological opposition is not always successful, and a number of nominees have been

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all well before the Bork nomination. Over time, the relative roles of merit, ideology, political patronage, geography, other demographic factors, or friendship ties have varied, as has the inuence of Senators in the selection process. Nominees have tended to be of the same political party as the President who nominates them, though a small percentage are not.47 Presidential administrations have varied in the rigor with which they have pursued policy agendas in appointments, especially on the lower courts;48 some scholarship suggests that a necessary prerequisite for doing so effectively has been a powerful coordinating role from the White House Counsels ofce.49 For many years the ABA had been given names of possible nominees before they were announced for professional evaluation, but this practice was ended in 2001.50 In the last two decades, in a larger political setting in which several politically polarizing issues are linked to court decisions, conrmation battles informed by ideological divides have seemed more intense,51 accompanied by contentious resort to senatorial prerogatives in challenging presidential agendas.52 The role (or apparent role) of ideology may have been enhanced by interest groups (some of which use judicial nominations as rallying tools) and by media coverage that tends to focus on conict and thus on political or ideological differences in the nomination process.53
unsuccessfully opposed on ideological grounds, including, for example, Louis Brandeis and Charles Evan Hughes. See MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 16364 (2000). 47. See, e.g., Goldman et al., W Bushs Judiciary, supra note 33, at 269, 274 (presenting tables that show the numbers and percentages of appointees to district courts and courts of appeals of members of the opposite party for the last ve administrationsranging from roughly 3% to 7%except that President Reagan appointed no Democrats to the courts of appeals). 48. See GOLDMAN, supra note 21, at 78, 13031, 20507, 25960, 30102, 359 (discussing policy agenda appointments in the Truman, Eisenhower, Nixon, Carter, and Reagan Administrations). 49. See, e.g., David S. Law, Appointing Federal Judges: The President, the Senate and the Prisoners Dilemma, 26 CARDOZO L. REV. 479, 48586, 488 (2005) (discussing centralization of control in the White House and related diminution in the role of Senators and of the Justice Department); see also GOLDMAN, supra note 21, at 11 n.i (noting the increased importance of the White House Counsels ofce in judicial selection beginning in the Carter Administration). 50. The change in the ABAs role raised concerns about how the selection process would reliably obtain information about professional competence and judicial temperament: if the ABAs professional assessment could begin only after a public announcement, lawyers might be more reluctant to share negative information. See Goldman et al., W. Bushs Judiciary, supra note 33, at 255 (describing the concerns expressed by Elliot Mincberg); see also Appendix II at text accompanying notes 4552. 51. Some observers suggest that while Supreme Court nominations have always been controversial, the degree of controversy over lower court nominees has escalated. See, e.g., Law, supra note 49, at 490. But cf. Michael Gerhardt, Judicial Selection as War, 36 U.C. DAVIS L. REV. 667, 67480 (2003) (reviewing earlier periods of conict over lower court nominees under Presidents Grant, Hoover, and Carter). Whether a higher percentage of modern nominees are controversial or whether the increase in disputes is related to the larger numbers of appointments to the inferior Article III courts, the publicity surrounding those contentious nominations colors perceptions. 52. See Goldman, Judicial Conrmation Wars, supra note 33, at 892, 900 (noting that, in the Clinton Administration, Republican holds prevented many nominees from receiving hearings and in the Bush Administration, Democrats libustered several lower court nominees). 53. For discussion of the role of interest groups around the conrmation process, see, for example, LAUREN COHEN BELL, WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE

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Controversies over ideological predisposition in appointments might affect the conditions for judicial independence in several ways. As noted earlier, judges who believe they have been selected only, or primarily, for their predispositions may be consciously or subconsciously inuenced to act in accordance with those predispositions, rather than to aspire to impartiality and openmindedness of decision under law. If conrmation battles were to create the impression that law has no existence apart from political predisposition,54 a decline in public trust in the fairness of the legal system might follow. If public trust declines, courts may lose some of the general legitimacy that enables (in a certain sense) compliance with unpopular specic decisions.55 Finally, selections seen as highly ideological may elicit tit-for-tat responses, moving the process to focus more highly on predisposition than on judicial competence and character. Selection based primarily on ideological or partisan considerations thus has some potential to undermine both the norms of judging and the public legitimacy of the courts. There is widespread agreement about the non-ideological qualities that nominees for Article III courts should have (though not about how to measure them): personal integrity; high intelligence; good professional training and experience; the capacity to think and write clearly about legal issues; and judicial temperament, consisting of a willingness to bring an impartial mind to bear and a more ephemeral quality lawyers call good judgment.56 In addition, there is agreeCONFIRMATION (2002); GERHARDT, supra note 46, at 21333; ROBERT KATZMANN, COURTS AND CONGRESS 3435 (1997); Stephen B. Burbank, An Interdisciplinary Perspective on the Tenure of Supreme Court Justices, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES 317, 33437 (Roger C. Cramton & Paul D. Carrington eds., 2006). On the role of the media, see GERHARDT, supra note 46, at 23449; KATZMANN, supra, at 3536. 54. The degree to which law constrains decisionmaking, inuences decisionmaking, or simply masks the inuence of other factors is the subject of a large literature, which can only be briey noted here. For the classic work on the attitudinal model, under which judges decisions are primarily determined by their own values and predispositions as applied to the facts, see JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993). For a helpful discussion of the contemporary literature, see Barry Friedman, The Politics of Judicial Review, 84 TEX. L. REV. 257, 270305 (2005) (describing how long-held attitudes and partisan afliation, the need to cooperate with colleagues on a multi-member court, and institutional demands of superintending lower courts and anticipating reactions from other branches all work as factors inuencing judicial decisionmaking). On Friedmans account, law as a somewhat independent norm does have inuence on judicial decisions. See id. at 275 (noting emerging agreement that stare decisis inuences not only lower courts but the Supreme Court). 55. See Burbank, supra note 53, at 336 (referring to social science work on diffuse and specic support); Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AMER. J. POL. SCI. 635, 637 (1992) (describing diffuse support); Lee Epstein et al., The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government, 35 LAW & SOCY REV. 117, 12931 & n.21 (2001) (explaining that [d]iffuse support is not a direct function of the willingness of a court to render decisions that are consistent with the substantive preferences of the public but rather is a function of the evolution of constitutional decisions over time, and that patterns of compliance with courts decisions reinforce diffuse support). 56. See e.g., ABRAHAM, supra note 46, at 12 (discussing his own and Professor Goldmans list of the attributes of a good judge); Lawrence B. Solum, A Tournament of Virtue, 32 FLA. ST. U. L. REV. 1365, 136876 (2005) (analyzing the virtues of the ideal judge).

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ment that the bench should be open to qualied nominees regardless of race, ethnicity, religion, or gender.57 There is considerable disagreement, however, over how much of a role ideological perspectives should play. Some argue for a focus only on character and the non-ideological components described above;58 others argue that it is appropriate for Presidents to pursue their ideological agendas through judicial appointments that pay close attention to judicial ideology, or for Senators to contest appointments on those grounds.59 Still others argue that, while there is a role for ideology, it is important for the federal bench as a whole to have a balance among a diversity of perspectives;60 and for some, the President may consider ideology within moderate limits, and the Senate may decide to block nominees on the same grounds if the ideological choice is too extreme.61 In recent years, the national party platforms have included statements about judicial appointments (generally framed in public-regarding terms),62 and national political controversy has frequently revolved around issues before the

57. On the impact of racial, ethnic, and gender diversity of experience on judicial decisionmaking, see Tracey George, Court Fixing, 43 ARIZ. L. REV. 9, 1825 (2001) (summarizing literature nding that the gender of the judge has little association with outcomes except possibly in discrimination cases; and that ethnic or racial differences likewise had little relationship to outcomes except possibly in discrimination cases, criminal cases, and prisoners rights cases). On other forms of diversity and their impact on judicial decisionmaking, see, for example, Lee Epstein et al., The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903 (2003); George, supra, at 2830 (discussing social, educational, and career diversity). 58. See, e.g., Stephen Carter, The Conrmation Mess, 101 HARV. L. REV. 1185, 1199 (1988). For a suggestion that character may be used as a proxy for ideological commitments, see Part I(A) of Michael J. Gerhardt, Whats Old Is New Again, 86 B.U. L. REV. (forthcoming 2007) (discussing new rhetoric in the Senate around the 2005 Supreme Court nominations). 59. See, e.g., Press Release, Sen. Charles E. Schumer, Schumer Says Role of Ideology in Judicial Conrmation Process Should be Legitimized and Considered in Evaluation of Judicial Nominees, June 26, 2001, http://schumer.senate.gov/SchumerWebsite/pressroom/press_releases/PR00612.html. 60. See, e.g., LAURENCE H. TRIBE, GOD SAVE THIS HONORABLE COURT: HOW THE CHOICE OF JUSTICES SHAPES OUR HISTORY 10610 (1985). 61. As David Law helpfully observes, ideology is not coterminous with extremism and it may be necessary to examine ideology in order to secure moderate appointees. See Law, supra note 49, at 50001. 62. See, e.g., STRONG AT HOME, RESPECTED IN THE WORLD: THE 2004 DEMOCRATIC NATIONAL PLATFORM FOR AMERICA 37 (2004), available at http://www.democrats.org/pdfs/2004platform.pdf (promising the appointment of judges who will uphold our laws and constitutional rights, not their own narrow agendas); THE 2000 DEMOCRATIC NATIONAL PLATFORM: PROSPERITY, PROGRESS AND PEACE 26 (2000), available at http://a9.g.akamai.net/7/9/8082/v001/www.democrats.org/pdfs/2000platform.pdf (promising appointment of justices to the Supreme Court who have a demonstrated concern for and commitment to the individual rights protected by our Constitution including the right to privacy); THE 2004 REPUBLICAN PARTY PLATFORM: A SAFER WORLD AND A MORE HOPEFUL AMERICA 7172 (2004), available at http://www.gop.com/media/2004platform.pdf (proclaiming that a handful of activist judges threaten to overturn commonsense and tradition and pledging to nominate only judges who have demonstrated respect for the Constitution and the democratic processes of our Republic); REPUBLICAN PARTY PLATFORM OF 2000 (2000), available at http://www.presidency.ucsb.edu/ showplatforms.php?platindexR2000 (pledging to name only judges who have demonstrated respect for the Constitution and the processes of our republic, in response to the problem that scores of judges with activist backgrounds in the hard-left now have lifetime tenure).

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courts (today including abortion, gay marriage, takings of property, rights of detainees and criminal defendants, the death penalty, and presidential authority to act against terrorism). Ideology and partisanship are thus likely, as a practical matter, to continue to play roles in the selection, and conrmation, of federal judges. To think that ideological predisposition is irrelevant in deciding cases that involve hotly contested constitutional or statutory questions is to ignore what we know about judicial decisionmaking;63 to think that judging is only about a judges political or policy attitudes is to miss the constraining force of law and of the judicial role.64 The justications for considering ideological predispositions may be strongest at the Supreme Court.65 The Court is the nal judicial decisionmaker on contested issues of constitutional law, as well as on a wide range of statutory, procedural, federal common law, and international law issues. Due to changes in its jurisdictional statutes over the twentieth century, the Court now has almost complete discretion over which appellate cases to decide.66 Given this discretion, nominees views of the Courts role and what kind of cases it should hear would be relevant. Because of the Courts discretion over its docket, a higher percentage of the argued cases are controversial and fall between established lines of authority and legal argument.67 These are the cases in which the judges legal predispositions may play a greater role in the decisionnot necessarily because of a general absence of law, as distinct from politics, in constitutional interpretation but because judges experience and viewpoints matter in interpreting law in open areas.68 On either account, one would expect greater scrutiny of

63. The attitudinal model of judging predicts that judges will seek to advance their own policy preferences or attitudes in deciding cases. See George, supra note 57, at 33. See generally SEGAL & SPAETH, supra note 54, at 6472, 20825. Many studies in this model support the relevance of the party afliation of the appointing President or party afliation of the judge (as proxies for the judges underlying attitude) to voting patterns in decided cases. See George, supra note 57, at 3336 & nn.88, 89 (summarizing and citing the literature on the inuence of ideology on judicial decisions). 64. See generally Friedman, supra note 54; see also George, supra note 57, at 35 (noting that the magnitude of difference in views between judges of different political afliations is not as strong as it is between voters or congressional representatives of different afliationsa nding consistent with some constraint associated with judging). 65. For example, district court judges sit alone to decide or supervise the jurys decision of contested issues of fact, and ndings of fact are always given deference on review. Trial court nominees temperament, fairness, and acuity in dealing with litigants might thus be regarded as more important than their ideological predispositions, especially because their legal decisions are all reviewable as of right. Cf. George, supra note 57, at 32 (indicating that trial court judges are most constrained by legal precedent). 66. See generally Edward A. Hartnett, Questioning Certiorari: Some Reections Seventy-Five Years After the Judges Bill, 100 COLUM. L. REV. 1643 (2000). 67. Cf. id. at 1733 (suggesting that the Courts discretion has led to a mindset that thinks of the Supreme Court more as sitting to resolve controversial questions than to decide cases). 68. See supra note 54; cf. Friedman, supra note 54, at 33334 (concluding that while judicial review is embedded in politics, it is not quite of it. Politics and law are not separate, they are symbiotic.). But see Richard Posner, The Supreme Court, 2004 TermForeword: A Political Court, 119 HARV. L. REV. 31, 40 (2005) (arguing that in open constitutional cases, decision is political, not legal, in character).

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Supreme Court nominees predispositions than of lower court judges. But it is also important to note that the U.S. Supreme Court remains a generalist court.69 Unlike more specialized constitutional courts in Europe, the U.S. Court sits to decide not only constitutional issues but also a broad range of cases. The need for its Justices to be able to handle that range emphasizes the need for excellent legal capacity and may moderate the role of ideology.70
C. PUBLIC HEARINGS AND JUDICIAL PRECOMMITMENT

Debate over partisan or ideological criteria is reected in public Senate hearings. Supreme Court nominees did not regularly appear at conrmation hearings until the 1950s, but today Senators ask questions designed to probe the nominees views, about legal interpretation and about particular substantive areas, in a public exploration which some applaud and others would abandon in favor of prior practice.71 From the vantage of judicial independence, the concern is that judges who indicate how they would rule with respect to pressing legal issues of the day will be unable to maintain the appearance or actuality of impartiality and open-mindedness to argument that is expected of judges.72 Nominees from both parties tend to draw some line between general questions, which they will answer, and questions that may come before them as judges, which they will not73perhaps reecting a pragmatic consensus that differences in approach to interpretation matter, but can be probed only to a limited
69. For example, a quick review of U.S. Law Weeks recent summary of the Courts forty-nine civil cases in the Term ending June 2006 found that well over half involved primarily statutory or procedural problems, such as whether certain joint ventures are per se violations of the Sherman Antitrust Act, the effect of a failure to move for judgment as a matter of law on review of sufciency of the evidence, or the scope of Title VIIs protection from employer retaliation against those who complain of discrimination. See Supreme Court Term in Review, 200506: Civil Cases, 75 U.S.L.W. 3057 et seq. (Aug. 8, 2006). 70. Cf. Carsten Smith, Judicial Review of Parliamentary Legislation: Norway as a European Pioneer, 2000 PUB. L. 595, 605 (having judicial review . . . implemented by judges whose main duties are ordinary application of the law, ensur[es] to a large degree that they apply recognized judicial methodology). This observation, if correct, might support the arguments of those who favor some diminution in the discretion the Supreme Court has over what cases it takes, to assure an appropriate mix of nonconstitutional as well as constitutional questions. 71. See, e.g., JUDICIAL ROULETTE: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON JUDICIAL SELECTION 811 (1988) (urging, except where an issue of personal conduct exists, a return to the prior practice according to which Supreme Court nominees should no longer be expected to appear as witnesses during the Senate Judiciary Committees hearings on their conrmation); see also Appendix II at note 38 and accompanying text. 72. Some would argue that it is foolish to expect mid-career lawyers who have formed views to change them, and accordingly, the public is entitled to know those views. Where a candidate has publicly written on a subject, discussion of those views can be expected. Pressing a candidate who has not publicly commented already to disclose whatever her existing views are may force a hardening of positions from which the nominee, if conrmed, would not retreat, thus interfering with the possibility of reconsideration or modulation of views once a case has been fully heard. 73. See Republican Party of Minn. v. White, 536 U.S. 765, 807 n.1 (2002) (Ginsburg, J., dissenting) (noting that in accord with a longstanding norm, every Member of this Court declined to furnish . . . information to the Senate, and presumably to the President, about how each would resolve particular contentious issues). Different nominees have varied somewhat in what cases they regarded as so

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extent through direct questioning without compromising other important values. Although it might be argued that in an era of legal realism picking judges should be understood as picking predispositions, and thus those predispositions should be a legitimate subject of inquiry,74 the insights of legal realism need not imply legal cynicism about the possibilities for impartial judging, according to established legal norms, on most issues that come before most judges. In many cases decided by federal Article III judges, the legal norms provided by precedent, statute, or constitutional text are relatively clear and would be applied in a similar way by most judges of either party; in other cases, where the law is uncertain, ideological and methodological predispositions may indeed matter, even as each judge should strive for impartial application of the law. While it remains open to Presidents and Senators alike to consider a nominees experience and prior writings in evaluating ideological disposition, it also remains important for the selection process to convey expectations of impartiality and independence of judgmenta goal that will limit what questions are asked and answered.
D. CAREERIST VS. INDEPENDENT LOWER COURT JUDGES?

Looking to the lower courts for nominees to appellate positions, which many observers identify as a trend (particularly in Supreme Court appointments),75 has obvious advantages, providing opportunity to evaluate judicial temperament and craftsmanship through the nominees past judicial experience.76 But doing so may also create undesirable incentives for decisions made with an eye to

settled that they will express a view, and what prior cases of the Court might be open to overruling and thus should not be discussed. See SUSAN LOW BLOCH & THOMAS H. KRATTENMAKER, SUPREME COURT POLITICS: THE INSTITUTION AND ITS PROCEDURES 197301 (1994) (excerpting materials from conrmation hearings for Robert Bork, David Souter, Clarence Thomas, and Ruth Ginsburg); Nina Totenberg, The Conrmation Process and the Public: To Know or Not To Know, 101 HARV. L. REV. 1213, 1219 (1988) (noting that Justice Scalia, in his conrmation hearing, refused to answer questions about specic cases, even Marbury v. Madison). 74. Cf. William P. Marshall, Constitutional Law as Political Spoils, 26 CARDOZO L. REV. 525, 53335 (2005) (analyzing this argument). Professor Marshall questions whygiven the logic of Republican Party of Minn. v. White, 536 U.S. 765 (2002) (which held unconstitutional a state ban on judicial candidates making election promises) and the logic of legal realism combined with legal positivism nominees for Article III courts should not be expected to tell the Senate how they would decide important issues. His most forceful answer is that an ideologically-driven appointments process legitimizes ideological judicial decision-making . . . licens[ing] judges to act in accord with their own political leanings. Marshall, supra, at 53637; see also Ronald D. Rotunda, The Role of Ideology in Conrming Federal Court Judges, 15 GEO. J. LEGAL ETHICS 127 (2001) (arguing against Senate questions, and nominee responses, with respect to particular issues). 75. See, e.g., Lee Epstein, Jack Knight & Andrew D. Martin, The Norm of Prior Judicial Experience and its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903, 908917 (2003). 76. Service on a lower court may also serve as a valuable credential for appointment to a higher court. See GOLDMAN, supra note 21, at 115 (noting that President Eisenhower considered judicial experience valuable and . . . made it clear that he would use an appeals court appointment as a stepping stone to the Supreme Court and did so with three of his four Supreme Court appointments). In some foreign constitutional courts, a percentage of their judges are required to be drawn from other courts. See, e.g., KOMMERS, supra note 7, at 88 (describing requirements for the German Constitutional Court).

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advancement through necessarily political conrmation processes.77 While the number of Article III judges being promoted to higher Article III courts may be higher than in the past (and the trend toward looking to judges already serving in the lower courts for nominees to the Supreme Court is clear), the percentage is still relatively low;78 but if lower court positions came to be viewed more as stepping stones rather than capstones, the temptation at the margin for self-interested decisionmaking might increase, especially in an atmosphere in which conrmation battles focus more openly on ideology.79 Some argue for a tournament of judges based, for example, on how often lower court judges are cited in other courts.80 Others dispute that service on lower courts should be seen as a competition, or contest the value of such supposedly objective criteria of merit as inuence (measured by citations in other courts), arguing that they may reward amboyant writing rather than good judging, or do not capture the range of qualities good judges should have, or create perverse incentives to game a purportedly objective count.81 Many scholars argue for
77. See Daniel Klerman, Nonpromotion and Judicial Independence, 72 S. CAL. L. REV. 455, 455 (1999) (arguing that while [l]ife tenure is probably the most important guardian of judicial independence, a policy not to promote lower court judges could also promote independence); id. at 45556 (noting research showing that federal judges likely to be selected for advancement tended to impose harsher penalties in antitrust cases and were more likely to uphold the constitutionality of the Sentencing Guidelines). Moreover, Epstein and her co-authors raise concerns about the marked trend toward nominating to the Supreme Court only those with prior judicial experience (primarily on the U.S. Courts of Appeals) because it reduces the career diversity of those who serve and thereby adversely affects the Courts decisionmaking capacities. Epstein et al., supra note 75, at 90811. 78. Compare, e.g., Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. REV. 579, 609 (2005) (stating that appellate judges (of both the intermediate and highest courts) are increasingly drawn from the ranks of lower court judges including statutory federal courts), with Klerman, supra note 77, at 46163 (suggesting that while there may be more appointments from the lower Article III courts to appellate positions, the percentages so appointed have not increased in recent years because the pool has also increased). Cf. Resnik, Uncle Sam Modernizes, supra note 29, at 671 n.281 (identifying eighty-two Article III judges who had previously served as non-Article III statutory judges). On the trend in Supreme Court nominations, see Epstein et al., supra note 75. 79. See Resnik, supra note 78, at 609 ([T]he possibility of promotion may undercut the ability of judges to feel unfettered by personal interest when rendering judgments.); cf. Andrew P. Morriss et al., Signaling and Precedent in Federal District Court Opinions, 13 SUP. CT. ECON. REV. 63, 64 (2005) (nding that [j]udges were more likely to use written opinions to communicate their rulings in Sentencing Guidelines cases where the potential for promotion to the circuit court of appeal was greater). Whether looking over their shoulders in hopes of advancement would tend to make lower court judges more careful (presumably a good thing), or would instead tend to make them more likely to rule in accordance with whoever controls the nomination and conrmation processes is debatable, but the presence of any effect raises concerns about the latter. And whether a concern for the approval of those who control the nomination and conrmation process would tend to produce more moderate or more polarized positions might depend on the political conguration of the Presidency and the Senate expected at the time when an appointment approaches (with perhaps greater concern for the President, given the Presidents power of initiative). 80. See Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CAL. L. REV. 299 (2004) (proposing that judicial nominees be evaluated and selected based on objective measures of merit, including quantitative output, independence on the bench (as reected in separate opinions on appellate panels), and inuence on other judges (as measured by citation analysis)). 81. See, e.g., James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices, 32 FLA. ST. U. L. REV. 1015, 1051 (2005) (arguing that application

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broader understandings of merit, suggesting that Presidents would do well to consider Supreme Court nominees with governing experience, like that of (President) Taft, (Governor) Warren, or (Senator) Black.82
E. PARTISAN RANCOR AND FRICTION

Notwithstanding such debates, history and constitutional structure suggest that politics will continue to play a critical role in nominations both to the Supreme Court and to the lower federal courts. Yet too much rancor in the conrmation process may, by itself, threaten judicial independence, albeit indirectly: it might affect the quality of persons willing to be nominated or the range of perspectives represented on the bench, and thus diminish the courts ability to do their job well.83 Rancor over conrmation battles might also feed disputes over legislation that could affect the independent operation of the federal courts (for example, court funding, judicial salaries, jurisdiction, substantive intrusions on adjudicatory functions,84 and threats of impeachment85). While the public
of Choi-Gulati criteria would not have correctly predicted the relative performance of Warren Burger or Harry Blackmun on the Supreme Court); Solum, supra note 56, at 139596 (arguing that the Choi-Gulati proposal misses important virtues of judging and would permit gaming of some of the supposedly objective measures); David Vladeck, Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 FLA. ST. U. L. REV. 1415, 1417 (2005) (criticizing the Choi-Gulati criteria as ill-suited to their goal of objectively measuring merit). 82. See, e.g., Epstein et al., supra note 75, at 908 (arguing that over-reliance on prior judicial experience reduces the diversity, and thus the decisionmaking abilities, of the Supreme Court); cf. Steven Goldberg, Federal Judges and the Heisman Trophy, 32 FLA. ST. U. L. REV. 1237, 124344 (2005) (drawing an analogy to how few Heisman Trophy winners succeed in professional football, suggesting that success on appellate courts does not correlate with greatness on the Supreme Court and that most of the most successful Justices had not previously served on lower federal courts). 83. See, e.g., WILLIAM H. REHNQUIST, CHIEF JUSTICE, 2001 YEAR-END REPORT ON THE FEDERAL JUDICIARY (Jan. 1, 2002), available at http://www.supremecourtus.gov/publicinfo/year-end/2001yearendreport.html (stating that the often lengthy and unpleasant nature of the conrmation process was, together with low salaries, making it increasingly difcult to nd qualied candidates for federal judicial vacancies); cf. MARK SILVERSTEIN, JUDICIOUS CHOICES: THE NEW POLITICS OF SUPREME COURT CONFIRMATION 16364 (1994) (discussing incentives for nominating stealth candidates). For references to the empirical literature on judicial diversity and decisionmaking, see supra note 57. There may be reasons to promote some forms of diversity on the federal bench, apart from any asserted effects on the substantive results in discrete sets of cases, that go to the perceived legitimacy of the court and fairness by which it is constituted. 84. See, e.g., PROTECT Act of 2003, Pub. L. No. 108-201, 401 (h), (l), 117 Stat. 650, 672, 67475 (2003) (requiring the reporting of individual judges who made downward departures from the Sentencing Guidelines); United States v. Detwiler, 338 F. Supp. 2d 1166, 1178 & n.17 (D. Or. 2004) (criticizing this requirement, part of the so-called Feeney Amendment, as an attempt to intimidate judges inconsistent with the constitutional separation of powers); Constitution Restoration Act of 2004, S. 2082, 108th Cong. 201 (2004) (seeking to prohibit reliance on foreign law, except English constitutional and common law, in interpreting the Constitution); American Justice for American Citizens Act, H.R. 4118, 108th Cong. 3 (2004) (indicating that federal judges should not resort to foreign law in constitutional interpretation, except English law as it inuenced the Framers); The Reafrmation of American Independence Resolution, H.R. Res. 568, 108th Cong. (2004) (seeking to restrict references to foreign law in interpreting federal law). 85. See, e.g., Tom Curry, A Flap Over Foreign Matter at the Supreme Court: House Members Protest Use of Non-U.S. Rulings in Big Cases, MSNBC, Mar. 11, 2004, http://www.msnbc.msn.com/id/ 4506232 (discussing Rep. Feeneys implicit threat of impeachment for judges who would ignore a proposed resolution forbidding the use of foreign law); see also Constitution Restoration Act of 2004,

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interest would be well served by a less rancorous approach, political compromise on these issues is to some extent contingent on larger political contexts. And to the extent that the politics of judicial selection processes pose some risks to judicial independence, the tenure provisions of Article III judges loom larger as part of the independence package. II. ARTICLE III AND JUDICIAL TENURE The Declaration of Independence in 1776 specically charged the King with having made judges dependent on his Will alone, for the tenure of their ofces, and the amount and payment of their salaries.86 Of the provisions of Article III concerning the establishment of the federal courts, none have made so important a contribution to judicial independence as those protecting judges tenure and salary in ofce.87 Defending them in The Federalist Papers, written to win state ratication of the Constitution, Alexander Hamilton argued the importance of permanency in ofce, as opposed to periodical appointments:
That inexible and uniform adherence to the rights of the Constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their ofces by a temporary commission. Periodical appointments, however regulated or by whomsoever made, would, in some way or other, be fatal to their necessary independence88

The Supreme Court, too, has spoken of the centrality of these provisions to the constitutional position of the federal judiciary:
H.R. 3799, 108th Cong. 101, 302 (2d Sess. 2004) (dening as an impeachable offense any activity that exceeds the jurisdiction of the court by reason of proposed limitations on jurisdiction to review challenges to public acknowledgement of God as the sovereign source of law); Constitution Restoration Act of 2004: Hearing Before the Subcomm. on Courts, The Internet, and Intellectual Property of the H. Comm. on the Judiciary, 108th Cong. 28 (2d Sess. 2004) (statement of Michael J. Gerhardt, Professor of Law, Wm. & Mary Law Sch.) (criticizing this provision as inconsistent with constitutional traditions of judicial independence, as it would seemingly authorize impeachment if the Court were to nd the law unconstitutional). 86. See Charles Gardner Geyh & Emily Field Van Tassell, The Independence of the Judicial Branch in the New Republic, 74 CHI.-KENT L. REV. 31, 35 (1998) (The dependence of colonial courts on the English monarch was among the ashpoints that sparked the Declaration of Independence.). 87. It has been suggested that Chief Justice John Marshall believed the decisional independence of the judges, protected by Article IIIs tenure rule, to be so important that when impeachment of a Supreme Court Justice over his (highly partisan) judicial work loomed, Marshall thought it would be preferable to have legislative review of judicial decisions than impeachment and removal of judges. See James M. OFallon, Marbury, 44 STAN. L. REV. 219, 241 & n.74 (1992) (suggesting that the threat of impeachment based on legislative disagreement with decisions would later prove sufciently worrisome to lead John Marshall, in the throes of the Chase impeachment, to suggest that the doctrine of impeachment should give way to legislative review of judicial decisions (citing to Letter from John Marshall to Samuel Chase (Jan. 23, 1804), in 6 THE PAPERS OF JOHN MARSHALL 347 (Charles F. Hobson & Frederika J. Teute eds., 1990))). 88. See THE FEDERALIST NO. 78, at 226, 232 (Alexander Hamilton) (Roy P. Faireld ed., 1981); see also THE FEDERALIST NO. 79, at 234 (Alexander Hamilton) (Roy P. Faireld ed., 1981).

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[T]hese guarantees of compensation and life tenure exist, not to benet the judges, but as a limitation imposed in the public interest. They promote the public weal, in part by helping to induce learned men and women to quit the lucrative pursuits of the private sector, but more importantly by helping to secure an independence of mind and spirit necessary if judges are to maintain that nice adjustment between individual rights and governmental powers which constitutes political liberty.89

There is little question that these tenure and salary protections promote Article III judges independence, from both the political branches and popular opinion. There is debate, though, about the meaning of the constitutional tenure provisions and the bases for impeachment.
A. LIFE TENURE AND IMPEACHMENT

The traditional understanding, expressed recently by the Supreme Court, is that the Clause securing federal judges appointments during good Behaviour, [is] the practical equivalent of life tenure.90 On this view, an Article III judge can be involuntarily removed from ofce only by the constitutionally specied mechanisms of impeachment, and only for conduct that meets the constitutional standard of Treason, Bribery, or other high Crimes and Misdemeanors.91 The during good Behaviour language of Article III, on this view, is a tenure provision indicating that, unless removed by impeachment, the judge may continue to hold ofce.92 There remains the question of what conduct counts as meeting the standard for impeachment. A critical issue that arose in the period of the rst major change in political power in the United Stateswhen Thomas Jefferson took over the presidency from the prior Federalist administrationswas whether that standard embraced erroneous judicial decisions with which members of Congress disagreed. After an inferior court judge (widely agreed to be incapable due

89. United States v. Hatter, 532 U.S. 557, 568 (2001) (internal references omitted) (quoting from or citing Evans v. Gore, 253 U.S. 245, 253, 248 (1920); 1 J. KENT, COMMENTARIES ON AMERICAN LAW 294; W. WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 143 (1911)). The Court also quoted Chief Justice John Marshall, who explained the need to ensure that the judge is perfectly and completely independent, because the judge may have to decide between the Government and the man whom that Government is prosecuting; between the most powerful individual in the community, and the poorest and most unpopular. Hatter, 532 U.S. at 56869. 90. Hatter, 532 U.S. at 567. 91. See U.S. CONST. art. II, 4. 92. See MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 83 (1996) ([T]he Article III formula could sensibly be read either as (1) setting a substantive standard of conduct on which judicial tenure is contingent, or as (2) employing an eighteenth century term of art to signal that federal judges should hold tenure for life unless impeached . . . .). Gerhardt argues for the latter, concluding that the good behavior clause . . . does not establish a separate or independent basis for removal other than those specied in the impeachment clauses. Id. at 8391. Gerhardt believes the Constitution is silent on the power of the judiciary to discipline its own members, that such powers must therefore be analyzed functionally, and that the 1980 Act authorizing the Judicial Councils to engage in discipline of judges is constitutional, in important part because it does not authorize formal removal. Id. at 10001.

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to mental illness) had been removed by impeachment and conviction,93 the House of Representatives voted impeachment articles against an aggressively partisan Federalist Supreme Court Justice, Samuel Chase, primarily for his conduct of criminal trials against Republican opponents of the Federalists.94 Although the Senate was dominated by Jeffersons supporters, a number of them refused to vote to convict on the articles of impeachment. Their decision can be viewed as establishing a legislative interpretation of the Constitution that Congress cannot remove judges based on its disagreement with their legal decisions, as well as a political norm that judges not engage in open partisanship from the bench.95 What conduct does meet the constitutional standard of Treason, Bribery, or other high Crimes and Misdemeanors has been the source of much scholarly and political disagreementboth as to what crimes meet the constitutional test

93. Prior to the effort to remove Chase, another Federalist judge, John Pickering, had been removed from ofce by Congress. Pickering was concededly insane, but it was unclear whether he was convicted of any conduct that could be deemed a specic criminal offense. See GERHARDT, supra note 92, at 50. Gerhardt compared the views of Simon Rifkind, as Justice William O. Douglass counsel in a 1970 House impeachment action (arguing yes), with the views of Charles Morgan Jr. et al., Impeachment: An Historical Overview, 5 SETON HALL L. REV. 689, 698 (1974) (arguing no and that the Pickering impeachment thus established a precedent that high crimes and misdemeanors may include noncriminal abuse of ofce). See also GERHARDT, supra note 92, at 50, 55 (noting that the Senate voted 18-12 to accept evidence of Judge Pickerings insanity, voted 19-7 to convict, and voted 20-6 to remove him from ofce; and arguing that Pickerings removal was consistent with Hamiltons view that impeachment could be used to remove insane (as opposed to senile) judges). 94. Justice Chases conduct in one trial was, in the words of his own counsel, indiscreet, and revealed some bias against the defendant. See RAOUL BERGER, IMPEACHMENT: THE CONSTITUTIONAL PROBLEMS 237 n.14 (1974). While Berger found Chases behavior to warrant impeachment and removal, Chief Justice Rehnquists assessment was more balanced, concluding that the evidence adduced at the trial before the Senate showed that Chase was impatient, overbearing, and at times arrogant, but this falls short of showing that Chase was the malevolent gure that Berger makes him out to be. WILLIAM H. REHNQUIST, GRAND INQUESTS: THE HISTORIC IMPEACHMENTS OF JUSTICE SAMUEL CHASE AND PRESIDENT ANDREW JOHNSON 88 (1992). 95. See REHNQUIST, supra note 94, at 114 (stating that the Chase acquittal in the Senate assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them); GERHARDT, supra note 92, at 56 (asserting that Chase was acquitted because enough Senators were persuaded that the absence of clear proof of the commission of an impeachable offense or of misconduct rising to the level of an impeachable offense precludes convicting an unpopular judge); Robert R. Bair & Robin D. Koblentz, The Trials of Mr. Justice Samuel Chase, 27 MD. L. REV. 365, 367, 385 (1967) (stating that it is generally agreed that Chases acquittal probably saved [Chief Justice John] Marshall from a like fate and that the most important consequences of the trial were a reduction of the fear of the use of impeachment for political ends); Keith E. Whittington, Reconstructing the Federal Judiciary: The Chase Impeachment and the Constitution, 9 STUD. IN AMER. POL. DEV. 55, 56, 112 (1995) (describing the success of Chases lawyers in focusing the Senate on a legal standard for conviction in an explicitly political trial that tested the outer boundaries of the impeachment mechanism, but also arguing that the Chase impeachment was not a complete failure for the Republicans insofar as it helped establish a norm against judges engaging in partisan behavior from the bench and left room for argument over abuse of ofce as a basis of impeachment, though not technical errors as a judge). For a contrary view, see, for example, BERGER, supra note 94, at 23462 (describing the failure of Chases impeachment as a miscarriage of justice, resulting not from adherence to constitutional principle but from the partisanship of Federalist Senators and hostilities amongst Republican Senators over unrelated matters).

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and what (if any) non-criminal conduct, in the nature of abuse of ofce, might also meet the constitutional standard.96 The signicance of the conventional view of the failed Chase impeachment is to remove from the latter category claims that the courts decisions are erroneous. Whatever the best reading of the Chase precedent and however binding on future Senates, the difculty of removing judges by impeachment is reinforced by the requirements of a twothirds majority to convict.97 The tradition that impeachment is not available based on legal disagreement with the judges decisions has been enduring. Erroneous decisions of the lower courts have been addressed by appeals to higher courts; Supreme Court decisions believed to be erroneous have been addressed by further litigation, further legislation, or in rare cases by a constitutional amendmentbut not, for the most part, by attacks on the judges tenure. Only thirteen Article III judges have been impeached by the House; eleven of these were tried in the Senate and seven removed from ofce by conviction in the Senate,98 though other judges have resigned in scandal. In recent years, impeachments of judges have involved alleged conduct that would violate serious criminal statutes, although in one controversial case a federal judge who was acquitted of criminal charges was nonetheless impeached and removed from ofce.99 The impeachment provisions have been interpreted not to bar prosecutions of sitting judges for criminal activity, subject to constitutional protections (jury trial, proof beyond a

96. For an introduction to the substantial literature on what conduct does and does not constitute an impeachable offense, see GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 36062 (4th ed. 2001) (describing, inter alia, Raoul Bergers view that high crimes and misdemeanors is a term of art, excluding removal for petty misconduct; Laurence Tribes view that impeachable offenses must be similar to Treason or Bribery, that is, major offenses against our very system of government; and Rep. Gerald Fords view that [a]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history). Some have noted that in The Federalist No. 81, at 242, 245 (Alexander Hamilton) (Roy P. Faireld ed., 1981), Hamilton argued that there was nothing to fear of judicial encroachments or deliberate usurpations on the legislature, for many reasons the last of which was the judges disinclination to risk the wrath of the body that held the power of impeachment. But this passage reads as a realpolitik statement, not (in terms) going to the legal standard to be employed by Congress, but to the motivation for its actions and the possibility of prudential self-restraint by the Court. 97. See Ferejohn, supra note 4, at 35859. 98. See ELIZABETH BAZAN & MORTON ROSENBERG, CONG. RESEARCH SERV., CONGRESSIONAL OVERSIGHT OF JUDGES AND JUSTICES 21 (Order Code RL 32935, May 31, 2005) (describing the eleven impeachment trials in the Senate); Emily Field Van Tassel, Resignations and Removals: A History of Federal Judicial Serviceand Disservice17891992, 142 U. PA. L. REV. 333, 336 n.14 (1993) (describing the thirteen judges who were impeached, two of whose proceedings were not completed). 99. Judge Alcee Hastings was acquitted of criminal charges. Thereafter, the Eleventh Circuit Judicial Council initiated an investigation of Hastings . . . [under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 which] resulted in a recommendation that the House consider impeachment proceedings against him. Todd Peterson, The Role of the Executive Branch in the Discipline and Removal of Federal Judges, 1993 U. ILL. L. REV. 809, 823. Judge Hastings was impeached in the House and convicted in the Senate; he was subsequently elected to the House of Representatives. See Peterson, supra, at 82123.

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reasonable doubt, and so forth).100 But thus far, the dominant understanding remains that the only way a federal judge can be constitutionally removed from his or her ofce and its accompanying salary, short of resignation, is through impeachment and conviction by a two-thirds vote in the Senate.
B. ALTERNATIVE READING OF DURING GOOD BEHAVIOUR?

This traditional understanding has been episodically challenged by textual and historical arguments that the during good Behaviour provision of Article III is not a reference to indenite tenure subject only to removal by impeachment and conviction in Congress,101 but is an additional measure of required behavior and an implied authorization to remove judges who do not conform to this standard through the common law writ of scire facias or an equivalent judicial proceeding.102 The argument, made again recently, is that the during good Behaviour standard would have been understood to contemplate grounds for removal of judges through adjudicatory (not legislative) mechanisms, so that Article III judges could be removed on ndings of bad behavior by a court-like body after a fair hearing;103 proponents argue that judicial proceedings are less
100. For a description of the constitutional issues, the lower court decisions rejecting constitutional challenges to criminal prosecutions of sitting judges, and the scholarly debate, see Peterson, supra note 99, at 83056. 101. See GERHARDT, supra note 92, at 83. 102. For earlier arguments that the during good Behaviour Clause would permit judicial removal of judges from ofce without resort to impeachment and conviction, see, for example, Raoul Berger, Impeachment of Judges and Good Behavior Tenure, 79 YALE L.J. 1475 (1970); Burke Shartel, Federal JudgesAppointment, Supervision, and Removal: Some Possibilities Under the Constitution: Part III, 28 MICH. L. REV 870 (1930). For contrary conclusions, see, for example, GERHARDT, supra note 92, at 8283; Robert Kramer & Jerome A. Barron, The Constitutionality of Removal and Mandatory Retirement Procedures for the Federal Judiciary: The Meaning of During Good Behaviour, 35 GEO. WASH. L. REV. 455, 46667 (1967) (concluding that [i]n view of the premium the framers placed on judicial independence, it is questionable whether judicially-administered procedures for removal of judges for cause would be constitutional); Peter M. Shane, Who May Discipline or Remove Federal Judges? A Constitutional Analysis, 142 U. PA. L. REV. 209, 239 (1993) (concluding that while the Constitution permits judicial self-regulation and discipline, there are serious constitutional doubts that selfregulation could extend to removal from ofce); Martha A. Ziskind, Judicial Tenure in the American Constitution: English and American Precedents, 1969 SUP. CT. REV. 135, 138. 103. See Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72, 12930 (2006). The authors note practical benets from such a reading: it would enable Congress to authorize, by statute, the removal from ofce of a federal judge once convicted of a criminal offense, without the necessity of an impeachment and trial in Congress; and it would allow Congress to authorize federal judges, in disciplinary proceedings, to remove a judge from ofce (as well as to discipline judges in other ways, as current law provides). Id. at 13033. One response to this renewed argument urges that the good Behaviour provision must be understood in the context of the Framers explicit emphasis on impeachment as the exclusive basis for removal of federal judgesan emphasis echoed by opponent and supporters of the Constitution. See James E. Pfander, Removing Federal Judges: A Reply (unpublished manuscript on le with author); see also GERHARDT, supra note 92, at 8486, 95100. Professor Pfander also argues that the broader historical context supports this view: Scire facias in England was used to remove only inferior judicial ofcers (such as clerks and bailiffs, and not judges equivalent to Article III judges) and by the late eighteenth century, legislatures had assumed an exclusive role in the removal of superior court judges. Pfander, supra. Although Professor Pfander tentatively notes the possibility of Article III having been construed to permit Supreme Court

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of a threat to appropriate independence than removal by the political branches and could give effect to the good Behaviour standard. Past arguments along these lines, though made with vigor,104 did not win wide support. Notwithstanding concerns whether the impeachment process remained adequate to the task of assuring good behavior in a much larger federal bench, the National Commission on Judicial Discipline and Removal in the early 1990s concluded that the only way to remove a federal judge was through the impeachment process.105
C. LEGISLATIVE ABOLITION OF COURTS?; OTHER CONGRESSIONAL POWERS

The Constitutions security of tenure provision could be effectively undermined if Congress were free simply to abolish a particular court, and its judgeships, and replace it with another of similar function but with different judges. Yet after the Jeffersonians ascent to power, in 1802 Congress enacted a statute to repeal legislation from the closing days of the Adams Administration that had created several new judgeships (lled with Federalist appointees); it thus effectively abolished Article III judgeships.106 The constitutionality of so doing was hotly contested at the time. In the course of debate, some went so far as to suggest that the good Behaviour provisions were intended only as a check on the President, and not the Congress, and accordingly that Congress was free simply to abolish judicial ofces for any reason;107 at least one proponent of the repeal expressed his willingness to continue to have the judges salaries paid if the Constitution so required.108 The constitutionality of the elimination of the judicial ofces, though very much debated in Congress,

appointment and removal of inferior federal judges, see also Appendix I, at n.16, he concludes that the historical case for a revised understanding has not been made. 104. See, e.g., BERGER, supra note 94, at 12788. 105. See ROBERT W. KASTENMEIER, CHAIRMAN, ET AL., REPORT OF THE NATIONAL COMMISSION ON JUDICIAL DISCIPLINE AND REMOVAL 1721 (1993); Stephen A. Burbank & S. Jay Plager, Disciplining the Federal Judiciary, Foreword: The Law of Federal Judicial Discipline and the Lessons of Social Science, 142 U. PA. L. REV. 1, 1014 (1993) (describing the National Commission on Judicial Discipline and Removals conclusion that impeachment and conviction were the only constitutional methods to remove a federal judge, and how the ABA had reconsidered, and withdrawn, its earlier support for a statutory removal mechanism). In the 1980s, three federal judges within a few years had been prosecuted and convicted of violating federal criminal laws and there was concern that impeachment was too cumbersome a method for removal of such judges, who could draw a public salary during the proceedings. See Peterson, supra note 99, at 812, 82128. Such concerns led to the creation of the National Commission on Judicial Discipline and Removal. See Judicial Improvements Act of 1990, Pub. L. No. 101-650, tit. IV 410, 104 Stat. 5089, 5124 (1990). 106. For descriptions, see Dean Alfange Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 SUP. CT. REV. 329, 35062; Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of the District of Columbia, 90 GEO. L.J. 549, 551 n.5 (2002). 107. See OFallon, supra note 87, at 226 (noting arguments by Senator Breckenridge and others that the good behavior tenure guarantee was intended only as a check on the Presidents power to remove judges, and not as a limit on the exercise of legislative power). 108. Id. (describing Senator Baldwins position).

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was never directly addressed by the Court (though the issue came before it).109 And in at least one subsequent instance when Congress abolished an Article III court, the Senates consideration of the constitutional issues (and of the doubtful authority of the 1802 repeal) led to provisions for the Article III judges to continue to sit on other Article III courts.110 The adverse effects of politically motivated removals on judicial independence are evident. It is reasonable to assume that most judges, like most people, do not want to lose their jobs and will, other things being equal, take steps to avoid doing so. If Congress or the President had the power to simply remove judges who became unpopular, judges would, on the whole, be less independent. It bears noting, though, that Congress has many other means by which to express itself and affect court operations. It has broad powers to control the jurisdiction of the federal courts;111 it can change the numbers of judgeships (prospectively); it can revise statutes when it disagrees with the courts interpretations;112 and it controls court funding (subject to the constitutional ban on decreasing judges compensation during their time in ofce). These alternative methods of political control are, at least arguably, less harmful to decisional independence than threats to a judges judicial ofce and personal livelihood, which may undermine more pervasively the rule of law.113

109. In Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), the authority of a reconstituted lower court (to award execution of a judgment given in the abolished court) was upheld on the grounds that Congress has power to establish inferior courts and to move jurisdiction between the lower federal courts. Id. at 309. The Court did not directly address the constitutionality of the abolition of the prior judicial ofces, which had been argued, see id. at 304 (argument of counsel), but limited its decision to the authority of Congress to transfer jurisdiction over cases from one inferior court to another and to require the Supreme Court Justices once again to ride circuit. See id. at 30809. One scholar has commented that the case represented a craven unwillingness on the part of the Court even to admit the existence of the principal constitutional issue presented by the case. Alfange Jr., supra note 106, at 363; see also OFallon, supra note 87, at 24042. For another incident of abolition of judgeships, this time during the Civil War, see Bloch & Ginsburg, supra note 106, at 55356 & n.24, 56061 & nn.55, 56 (describing the abolition of a District of Columbia court and its replacement by a different court with different judges; noting that the Supreme Court never reviewed the constitutionality of the act; and noting that debate in Congress assumed that the abolished court was an Article III court but that the status of such courts in the District of Columbia was not claried until 1933). 110. See Charles G. Geyh, Judicial Independence, Judicial Accountability, and the Role of Constitutional Norms in Congressional Regulation of the Courts, 78 IND. L.J. 153, 19294 (2003) (describing the short and unhappy life of the Commerce Court, established in 1910 and abolished in 1913, and the extensive constitutional debate in the Senate that led to the decision to reassign the Article III judges of that court to other Article III courts). The Senates unwillingness to treat the 1802 repeal act as a precedent for simply abolishing the judgeships along with the Commerce Court, and the views expressed that the 1802 act was a product of the passions of the day, are especially noteworthy in light of the then-ongoing impeachment inquiry into possible corruption by one of the Commerce Courts members, Judge Archbold. See id. at 19294 (quoting Senator Walsh). 111. For an introduction to the extensive literature on the scope of congressional power over the existence and jurisdiction of the inferior federal courts and over the Supreme Courts appellate jurisdiction, see FALLON JR. ET AL., supra note 5, at 319418. 112. See, e.g., Robertson v. Seattle Audubon Socy, 503 U.S. 429 (1992). 113. For descriptions of the patterns of impeachment and removal of national and provincial judges and threats to the rule of law in Argentina, see REBECCA BILL CHAVEZ, THE RULE OF LAW IN NASCENT

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The federal judiciary in the United States has a strong record for probity and independence,114 and the constitutional provisions on tenure and salary protection are regarded by many as integral to that record. But life tenure carries with it foreseeable risks of disability and decrepitude,115 of judges remaining in ofce (some for nancial reasons) beyond the time when they are at their best. If judges remain healthy and t, moreover, life tenure (absent signicant growth in judgeships) could limit the availability of positions for younger generations of lawyers to become judges and the opportunities for newly elected Presidents to appoint members of the federal judiciary. Pensions and provisions for voluntary retirement are a partial response to these concerns. Although the rst federal judge removed from ofce by Congress was believed to be insane, the propriety of impeachment for disabilities was uncertain, especially after the failed Chase impeachment and its construction of the standards for impeachment.116 Legislative responses (including an unsuccessful proposed constitutional amendment for mandatory retirement of judges) emerged early in the nineteenth century,117 but it was not until 1869 that Congress by law provided for pensions for retiring federal judges.118 In the twentieth century, it became possible for federal judges to retire from full service without resigning by taking senior status.119 Such changes in federal pension and retirement laws for federal judges have had a signicant impact on the willingness of federal judges to vacate positions that can be lled by new appointees.120 Federal statutes also provide procedures under which, upon

DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA 912, 3841 (2004); GRETCHEN HELMKE, COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA 6392, 14652 (2005). 114. See Peterson, supra note 99, at 82930 (reporting that even those prosecutors specializing in ofcial corruption work believe that there are few corrupt federal judges). 115. See Van Tassel, supra note 98, at 40005 (discussing judicial disability among lower court federal judges in nineteenth and early twentieth centuries and legislative responses); see also David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. CHI. L. REV. 995 (2000) (identifying Supreme Court Justices who, in the authors judgment, remained on the Court after they had become unable to carry out their duties, and favoring a constitutional amendment for a mandatory retirement age of seventy-ve). Garrows article disagreed with earlier ones that had concluded that the problem of mental decrepitude on the Court was minor at best; Garrows assessment of the severity of the problem has in turn been challenged by Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. ILL. L. REV. 407, 44447. On the relationship between pensions and retirements on the Supreme Court, see generally WARD, supra note 9. 116. See supra notes 16, 9396. 117. Van Tassel, supra note 98, at 40001 (describing how, briey in 1801 and then beginning again in 1809, federal statutes made provisions for shifting cases away from a disabled judge to others, though Congress rejected a proposed amendment for mandatory retirement at age sixty-ve); see also WARD, supra note 9, at 11 (noting congressional consideration of possible constitutional amendments for mandatory retirement ages of seventy or seventy-ve). 118. Van Tassel, supra note 98, at 396 (noting that pensions were available for judges with ten years service and seventy years of age). 119. Id. at 398. 120. See WARD, supra note 9, at 89, 1619; Albert Yoon, Loves Labor Lost? Judicial Tenure Among Federal Court Judges, 19452000, 91 CAL. L. REV. 1029, 1045 (2003) (nding that in recent years more federal judges retiring from the bench are qualied for pensions).

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certication of disability, a disabled judge can remain in ofce and continue to draw his salary, but an additional judge is appointed and the disabled judgethough not removed from ofcebecomes junior to the newly appointed judge.121 Given the high standard for removal from ofce by impeachment, lesser forms of judicial misconduct are addressed through internal judicial self-discipline. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 specically authorized the judicial councils of the federal circuits to receive and act on complaints about the conduct of Article III judges and other judges who serve in the Article III courts.122 Prior to that time, at least one Judicial Council had briey suspended an Article III judge from hearing cases, an episode that led to litigation before the Supreme Court without a clear resolution on the merits.123 Under the 1980 Act, complaints against judges are led with the chief judge of their court, who can either dismiss them, resolve them informally, or refer them for further investigations to a special committee of judges. Based on recommendations of the special committee, the judicial council for the circuit may impose discipline, including public or private reprimand, or temporary suspension of case assignments to the judge; a complaint can also end up being referred, through the Judicial Conference, to the House of Representatives for its consideration of impeachment.124 The statute provides, however, that [u]nder no circumstances may the judicial council order removal from ofce of any judge appointed to hold ofce during good behavior.125 The constitutionality of these provisions for internal self-discipline, challenged as inconsistent with Congresss exclusive power to remove judges by impeachment and the constitutional protections of Article III independence, has

121. See Van Tassel, supra note 98, at 404 (indicating that since 1928, these disability provisions were used on at least ten occasions); see also 28 U.S.C. 354(a)(2)(B), 372(b) (2000 & Supp. II 2002) (making provisions for other judges to certify disability to allow the President, with the advice and consent of the Senate, to appoint an additional Article III judge). 122. See Pub. L. No. 96-458, 94 Stat. 2035 (codied as amended in scattered sections of 28 U.S.C.); 28 U.S.C. 351(c) (Supp. II 2002) (as amended by the Judicial Improvements Act of 2002, Pub L. No. 107-273, 116 Stat. 1848 (codied in various sections of 28 U.S.C.)). 123. See Chandler v. Judicial Council of the Tenth Circuit, 382 U.S. 1003 (1966) (denying application for a stay); id. at 100406 (Black, J., dissenting) (arguing that the Court should have stayed the Tenth Circuits order that Judge Chandler take no further action on cases assigned to him because it was equivalent to a temporary removal from ofce and incompatible with the Constitutions guarantees of judicial independence); see also Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 85 (1970) (denying a motion for leave to le petitions for extraordinary relief, in part because relief might be available below from the Judicial Councils order allowing Judge Chandler to resolve cases already assigned to him but precluding new case assignments; but also noting with approval that [m]any courtsincluding federal courtshave informal, unpublished rules which, for example, provide that when a judge has a given number of cases under submission, he will not be assigned more cases until opinions and orders issue on his backlog, which are reasonable, proper, and necessary rules, and further stating that if one judge in any system refuses to abide by such reasonable procedures it can hardly be that the extraordinary machinery of impeachment is the only recourse). The Chandler actions predated the explicit grant of statutory authority to the Judicial Councils to engage in judicial discipline, enacted in 1980. 124. See 28 U.S.C. 354, 355 (Supp. II 2002). 125. 28 U.S.C. 354 (a)(3)(A).

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been upheld in two courts of appeals that have reached the issues.126 One partial dissent, however, noted thatdepending on the circumstancesjudicial independence may be threatened by action against an individual judge by other judges, especially if the action is based on matters within the judges decisional authority,127 raising important questions of whether the structural protections of Article III are mainly to protect the judiciary as a whole from outside political pressure or are to protect the independence of each individual judge. Studies in the early 1990s found little concern among the chief judges who bore primary responsibility for receiving complaints under the Act about the disciplinary proceedings operating as threats to judicial independence, but more concern about the amount of time required to address frivolous complaints.128 Two other concerns about retirement and independence should be noted. First, concerns for decisional independence could arise if serving as a judge became a stepping stone to further advancement in the private sector, rather than the capstone of a legal career. While some judges have left the bench to earn higher salaries in private practice,129 one recent study concludes that the rate of early departures has not markedly changed in recent years.130 Second, the absence of any mandatory retirement age allows Supreme Court Justices more exibility to time their retirements to

126. See McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52 (D.C. Cir. 2001); In re Certain Complaints Under Investigation by an Investigating Comm. of the Eleventh Circuit Judicial Council, 783 F.2d 1488, 150609 (11th Cir. 1986); see also Hastings v. Judicial Conference of the U.S., 829 F.2d 91 (D.C. Cir. 1987). 127. See McBryde, 264 F.3d at 77 (Tatel, J., concurring in part and dissenting in part) ([T]he principle of judicial independence guarantees to individual Article III judges a degree of protection against interference with their exercise of judicial power, including interference by fellow judges.). The majority in McBryde reasoned that the structural protections for the Article III judiciary were primarily intended to safeguard the [judicial] branchs independence from its two competitorsi.e., the political branchesrather than to protect individual judges from action of other judges. Id. at 65 (majority opinion). 128. See Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. PA. L. REV. 25, 3536, 4041, 173, 187 (1993). The report also found relatively low levels of concern among other lower court judges about the effects of the 1980 Act on the independence of judges, though it did identify a small number of complaints whose handling was troublesome: each involved complaints about judges comments at sentencing and were handled in such a way, the authors wrote, as might have given rise to the misimpression that the judge could be held accountable, apart from appellate review, for expressing reasons for imposing a particular sentence. Id. at 177. See generally id. at 17378. For a more recent evaluation, issued after this Essay was originally prepared, see STEPHEN BREYER, CHAIR, ET AL., THE JUDICIAL CONDUCT & DISABILITY ACT STUDY COMM., IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980: A REPORT TO THE CHIEF JUSTICE 10726 (Sept. 2006) (nding a very good job overall in how complaints under the Act are handled and making recommendations to improve procedures and enhance judicial and public awareness). 129. See Stephen G. Breyer, Assoc. Justice, Testimony at the Public Hearings of the National Commission on the Public Service: A Time of Crisis and Opportunity 58 (July 15, 2002), available at http://www.brookings.org/comm/transcripts/20020715.pdf (arguing in favor of salary increases for federal judges because if judgeships were to become a stepping-stone to some other more lucrative job in the private sector, it spells death for the judicial system even though it can be tolerated elsewhere in government). 130. See, e.g., Yoon, supra note 120, at 104954 & n.72.

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allow one, rather than another, President to select a successor.131 These and other concerns have given rise to proposals to limit the tenure of Supreme Court Justices, discussed in Part III below.
E. SALARY CONCERNS

In recent years, Chief Justices and other judges have spoken out on the need to raise federal judicial salaries in order to sustain the quality and independence of the bench.132 One study, however, has found an increase in spending on non-salary items which, the author suggests, may contribute to the quality of the job in ways that promote retention of federal judges.133 The constitutional ban on decreases in judicial salary may seem to raise the stakes in providing increases in salaries to the judicial branch, though relative to the federal budget the numbers and salaries of Article III judges are miniscule. Litigation challenging Congresss failure to increase judges salaries (as an effective diminution in salary in light of ination) was unsuccessful,134 however, as was a challenge to failure to permit cost of living increases to come into effect.135 Logic and experience suggest the importance of maintaining appropriate compensation to retain and attract top quality lawyers and avoid temptations to corruption.

131. See WARD, supra note 9, at 1, 19394, 200, 207 (discussing the possible impact of control of the White House on Justices retirement decisions). 132. See, e.g., WILLIAM H. REHNQUIST, CHIEF JUSTICE, 2002 YEAR-END REPORT ON THE FEDERAL JUDICIARY (Jan. 1, 2003), available at http://www.supremecourtus.gov/publicinfo/year-end/2002yearendreport.html (At the risk of beating a dead horse . . . the need to increase judicial salaries . . . remains the most pressing issue today.); JOHN G. ROBERTS, CHIEF JUSTICE, 2005 YEAR-END REPORT ON THE FEDERAL JUDICIARY 35 (Jan. 1, 2006), available at http://www.supremecourtus.gov/publicinfo/year-end/ 2005year-endreport.pdf (Our system of justice suffers as the real salary of judges continues to decline.); see also Williams v. United States, 535 U.S. 911, 921 (2002) (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari) (The Compensation Clause . . . protects judicial compensation, not because of the comparative importance of the Judiciary, but because of the special nature of the judicial enterprise[,] . . . [which] Chief Justice Marshall explained, may call upon a judge to decide between the Government and the man whom that Government is prosecuting: between the most powerful individual in the community and the poorest and most unpopular. Independence of conscience, freedom from subservience to other Government authorities, is necessary to the enterprise. The Compensation Clause helps to secure that judicial independence.) (internal citation omitted)); Breyer, supra note 129, at 58. 133. See Yoon, supra note 120, at 105557 (suggesting that a reason for judges not voting with their feet to leave the federal bench is the presence of non-salary benets, including law clerks). 134. See Atkins v. United States, 556 F.2d 1028, 104051 (Ct. Cl. 1977). 135. See, e.g., Will v. United States, 449 U.S. 200 (1980) (upholding statutory freezes on salary increases that had not yet gone into effect, but nding others unconstitutional, where they came into effect after the judges entitlement under prior statute to the higher salary had already come into effect); see also Williams v. United States, 240 F.3d 1019 (Fed. Cir. 2001) (holding that laws preventing planned pay increases for Article III judges were constitutional because the judges salaries were not being diminished), cert. denied, 535 U.S. 911 (2002). It is not clear whether the Federal Circuits decision in Williams is entirely consistent with the emphasis on nondiscrimination found in United States v. Hatter, 532 U.S. 557 (2001) (permitting nondiscriminatory, general taxes that fall on judges salaries like others, but not tax laws that have the effect of singling out judges salaries for adverse tax treatment). See Williams, 535 U.S. at 91819 (Breyer, J., joined by Scalia and Kennedy, JJ., dissenting from denial of certiorari) (suggesting that the constitutionality of the challenged law is in doubt under Hatter).

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III. INSTITUTIONAL DESIGN AND INSTITUTIONAL CHANGE: REFORM PROPOSALS In recent years, law reviews and op-ed pages have been unusually full of reform proposals relating to selection and tenure rules for Article III judges, and probably for several reasons. The idea that any public service position is held for life as a matter of right is in tension with modern conceptions of merit and public accountability. Legitimate constitutional government, moreover, requires both independent courts and effective democratic participation in governance. Dissatisfaction with the relationship between the courts and the work of the elected branches of government, arising out of judicial invalidation or failure to invalidate actions of other branches and levels of government, has fed interest in reform proposals. Some critics, on both the right and the left, seek institutional changes designed to produce a more populist or democratically constituted Supreme Court, perhaps spurred by an unusually long period (19942005) of unchanging membership on that Court. Others attribute high levels of partisanship and rancor to the voting rules in the conrmation process, or the high stakes produced by the interaction of tenure during good Behaviour and the random and unpredictable pace at which vacancies become available (particularly on the Supreme Court). Still others are concerned with the capacity of Supreme Court Justices to time their resignations for strategic political purposes. I will briey comment on two sets of proposals that have received attention: (1) changing the Senates voting rules for conrmation of judges and (2) changing the tenure of Supreme Court Justices, either by statute, by constitutional amendment, or through incentives.
A. CHANGING THE SENATES VOTING RULES

The Constitution requires simply the Advice and Consent of the Senate to proposed nominations,136 language long interpreted as requiring consent by a majority in the Senate.137 Most federal judges are conrmed by overwhelming votes that far exceed two-thirds of the Senate.138 In the wake of Justice Thomass conrmation by an unusually close vote (52-48), proposals emerged to

136. U.S. CONST. art. II, 2. 137. Cf. Christopher L. Eisgruber, Politics and Personalities in the Federal Appointments Process, 10 WM. & MARY BILL OF RTS. J. 177, 184 (2001) (reviewing MICHAEL J. GERHARDT, THE FEDERAL APPOINTMENTS PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS (2001)) (questioning whether this provision could have been interpreted to require afrmative Senate rejection of proposed nominees, with consent being presumed in the absence of rejection within a specied time). 138. See Resnik, supra note 78, at 636 (chart 5) (showing that the overwhelming supermajority of President Clintons and President Bushs nominees through 2003 to the courts of appeals and district courts were conrmed by afrmative votes of at least ninety-one Senators; also showing that of the 548 nominees for lower court Article III judgeships who reached the oor of the Senate from 1993 through 2003, only three of President Clintons and three of President Bushs were conrmed with less than sixty-one votes (three-fths of the Senators)); Lee Epstein, A Better Way to Appoint Justices, CHRISTIAN SCI. MONITOR, Mar. 17, 1992, at 19 (stating that since 1937, only one successful nominee to be an associate justice might have failed to gain 67 Senate votes had a two-thirds rule for conrmation been in place), excerpted in BLOCH & KRATTENMAKER, supra note at 73, at 32324.

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require a two-thirds (or other super-majority) vote to conrm judges for life tenured seats. Proponents argued that a higher supermajority was appropriate because judges serve for such long periods, far beyond the term of the administration then in power, and exercise such important responsibility in interpreting the Constitution insofar as it constrains other branches; moreover, a supermajority rule would foster a more cooperative process of identifying high quality nominees who can win approval from segments of both major parties, thereby improving the process and producing high quality, moderate or mainstream judges.139 The Senates authority by internal rule to require a two-thirds vote on judicial nominees is unclear;140 a constitutional amendment would in theory be possible. Other recent proposals, not directed at the Senates rules but rather at some form of bipartisan nominating commission, likewise aim to secure a broader political consensus for nominees.141

139. See Epstein, supra note 138 (arguing that a two-thirds rule would produce nominees chosen more for their legal credentials to gain true bipartisan support, and that given historic patterns, requiring a two-thirds vote would affect only a small number of nominations, though at the margin a different voting rule might produce some different votes); see also Resnik, supra note 78, at 63738 (arguing for a three-fths rule on similar grounds as generating movement towards a middle ground). Note that by statute the judges of the German Constitutional Court, probably the most inuential national constitutional court in Europe, are chosen by a two-thirds vote in a special legislative committee of the Bundestag (which has power to make selection decisions for that chamber) and in the Bundesrat (a two-thirds vote of the whole chamber), though the German Basic Law itself includes no special voting rule for decisions of these two houses of the national parliament. See KOMMERS, supra note 7, at 89; Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORY L.J. 837, 844 (1991); GRUNDGESETZ [GG] [BASIC LAW] art. 94 (F.R.G.) (stating that half the justices of the Constitutional Court will be chosen by the Bundestag and the other half by the Bundesrat without specifying a voting rule). 140. Compare, e.g., John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995) (arguing that the three-fths rule for voting on tax bills adopted by the House of Representatives, as well as the longstanding Senate rule permitting libusters, are permissible exercises of each Houses constitutional authority to make its own rules), with Susan Low Bloch, Congressional Self-Discipline: The Constitutionality of Supermajority Rules, 14 CONST. COMMENT. 1 (1997) (arguing that neither House may require a two-thirds majority for action, whether for bill passage or for giving advice and consent to presidential nominations, where the Constitution did not specify a special voting rule; and distinguishing the libuster as an internal rule governing when a matter can come to a vote, not what majority is required on a substantive vote). 141. For example, Senator Schumer reportedly proposed use of commissions consisting of equal numbers of Democrats and Republicans to identify a single nominee, who must be selected by the President unless he found the candidate unt for judicial service. Editorial, Balancing Judges, BOSTON GLOBE, May 6, 2003, at A18. This proposal would raise serious constitutional questions concerning whether the binding force of the commissions recommendation would be consistent with the Presidents Article II power to nominate. Cf. Pub. Citizen v. U.S. Dept of Justice, 491 U.S. 440 (1989) (holding that the Federal Advisory Committee Act did not apply to the ABAs work on judicial nominations, construing the statute not to reach those activities in light of constitutional concerns about restrictions on the Presidents authority in the nominating process); id. at 46869 (Kennedy, J., concurring in the judgment) (concluding that the statute reached the ABAs activity but was unconstitutional in so doing). Indeed, a single nominee rule would impose an even more stringent limitation than the nominating commission process of the District of Columbia. See Appendix I at text accompanying notes 8687. President Carter relied on presidentially appointed nominating commissions, which acted in an advisory capacity to recommend possible candidates for the federal courts of appeals. See Appendix II at text accompanying notes 1617. A number of western democracies have in recent years considered or adopted proposals to rely on nonpartisan or bipartisan nominating commissions to improve the judicial selection process. For a description of the United Kingdoms Constitutional

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A very different kind of proposal is animated not by a desire for greater consensus but for more pure majority voting in the Senate, by abolishing the minoritys power to libuster judicial nominations.142 The libuster is a device available in unusual cases (because political restraints prevent its use more generally) to require supermajority voting to end debate.143 The libuster differs signicantly from a general rule requiring a supermajority vote for judicial nominees: the latter suggests that a high degree of consensus should ordinarily be required for judicial appointments, while reliance on the libuster suggests that supermajority voting rules need special justication and are a departure from the norm. Although arguments are made on both sides of this question,144 the case

Reform Act 2005, which came into force on April 3, 2006, see Department for Constitutional Affairs, Constitutional Reform, http://www.dca.gov.uk/constitution/reform/reform.htm (last visited Jan. 4, 2007) (explaining the new Judicial Appointments Commission for recommending persons for judgeships and the new Supreme Court, initially to be staffed by the present Law Lords, with subsequent vacancies to be lled with participation of a selection commission). For Canadian discussions about the selection process for their Supreme Court judges, compare, for example, Jacob Ziegel, Disrobe this Process, GLOBE & MAIL, Nov. 27, 2003 (arguing for more transparency in the selection process, not only to ensure exceptional legal qualities but a balanced spectrum of constitutional and private law philosophies and favoring some form of parliamentary participation), with CAN. BAR ASSN, SUPREME COURT OF CANADA APPOINTMENTS PROCESS 12 (Mar. 2004), http://www.cba.org/CBA/submissions/pdf/04-10-03eng.pdf (opposing any parliamentary role in reviewing candidates because it would politicize the process and undermine judicial independence, while favoring an advisory committee to make recommendations on Supreme Court appointments). 142. For a description of recent proposals to use the nuclear option to abolish the libuster by simple majority vote, see David S. Law & Lawrence B. Solum, Judicial Selection, Appointments Gridlock, and the Nuclear Option, 15 J. CONTEMP. LEGAL ISSUES 51, 5863 (2006). 143. Filibusters are available to extend debates (and avoid a vote) on a wide range of legislative matters, not only nominations. See SENATE RULE XXII (Precedence of Motions), available at http:// rules.senate.gov/senaterules/rule22.php. 144. For helpful description and analysis of the arguments against the constitutionality of the libuster, see Michael Gerhardt, The Constitutionality of the Filibuster, 21 CONST. COMMENT. 445, 449 (2004) (concluding that the libuster has the same claim to constitutionality as many other countermajoritarian practices within the Senate, including the committee structure). Opponents have argued that the libuster is countermajoritarian, insofar as it obstructs the will of a majority of the members of the Senate; those opposed to abolition of the libuster have responded that a majority of the Senate does not necessarily represent a majority of the country, and that in some ways a supermajority rule is better designed to assure that the Senates conrmation reects majority views in the country. See Catherine Fisk & Erwin Chemerinsky, In Defense of Filibustering Judicial Nominations, 21 CARDOZO L. REV. 331, 33134 (2005). Others have distinguished libusters on nominations from libusters on legislation, in that the former take power away from the Presidents constitutionally granted power to nominate, while the latter may involve only intrabranch disputes in the Congress. See Herz, supra note 34, at 45354. But see Gerhardt, supra, at 46364 (concluding that the Presidents obligation to nominate judges does not take away from the Senates broad discretion to advise and consent). Steven Calabresi has argued that libustering judicial nominations is inappropriate because if a mistake is made with a judicial conrmation . . . impeachment is always available to rectify the error. There is no similarly easy remedy if Congress passes a bad law. Judicial Nominations, Filibusters and the Constitution: When a Majority is Denied Its Right To Consent: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Judiciary Comm., 108th Cong. (2003) (statement of Steven Calabresi, Professor of Law, Nw. Univ. Law Sch.), available at http:// www.judiciary.senate.gov/hearing.cfm?id744. But a mistake in conrming a judge is not remediable by impeachment, unless the judge can be found by two-thirds of the Senate to have engaged in conduct that is Treason, Bribery, or other high Crimes and Misdemeanorsand one can imagine

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for having heightened (super-majority) votingas a general rule or available in exceptional casesfor the appointment of life tenured ofce holders seems relatively strong, as compared to its use for ofce holders whose terms are shorter.145 Supermajority voting rules are required for the selection of justices to some constitutional courts in Europe;146 here, the case for heightened voting rules is at its strongest with respect to appointments to the Supreme Court because of its nal authority within the hierarchy of courts.147 Closely divided votes on conrmation of judges may, over the long run, diminish the judges stature in the public eye and diminish the sense of law as a constraint that exists somewhat apart from politics. Conversely, procedures that conduce to more cooperation in evaluating professional standards may help reinforce the distinctiveness of law and legal judgments from partisan politics. Given the necessarily political nature of the process, and the association of political differences with differences over constitutional issues, it is neither realistic nor necessarily healthy to expect that ideological views would no longer play a role. Voting rules changes might, however, at the margin foster a more cooperative focus on nding nominees with broader support, thereby reducing the rancor and dominance of ideological battle.
B. TERM LIMITS/MANDATORY RETIREMENT

The question of term limits or mandatory retirement for Supreme Court members has arisen episodically. In the late 1980s, for example, Professor Henry Monaghan proposed term limits of fteen to twenty years for Supreme Court Justices.148 After the Rehnquist Court had served a full decade of service with no change in membership, proposals for reform multiplied. Professor

many mistakes in selection that do not rise to that level. Remedying statutory errors through new legislation has occurred far more often than successful completion of the impeachment process to remove federal ofcials. 145. Cf. John Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 65 (2002) (asserting that most European constitutional court judges are appointed by supermajorities and arguing for supermajorities for appointment and xed nonrenewable terms). 146. John A. Ferejohn & Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 TEX. L. REV. 1671, 1681 (2004); see KOMMERS, supra note 7, at 8991 (describing German rules requiring a two-thirds votes). Ferejohn and Pasquino argue that European justices are appointed by supermajorities, or by other processes that lead to justices who are acceptable to all major parties. Universally, justices on those courts sit for long nonrenewable terms, and not for life. The resulting courts tend not to be populated by justices from any ideological or jurisprudential extreme, but to be dominated by judicial moderates, and as a result, European decisions are more moderate and more likely to represent a consensus in the court. Ferejohn & Pasquino, supra, at 1702. 147. For an interesting argument in favor of abolishing libusters for lower court but not Supreme Court nominations, see John O. McGinness & Michael B. Rappaport, Supermajority Rules and the Judicial Conrmation Process, 21 CARDOZO L. REV. 543, 546 (2005) (suggesting that libusters work towards moderation in appointments and should continue to be available for Supreme Court nominations). 148. Henry Paul Monaghan, The Conrmation Process: Law or Politics, 101 HARV. L. REV. 1202, 121112 (1988) (arguing that, assuming independence is desirable, it can be achieved with long, nonrenewable terms: [W]hat relieves judges of the incentive to please is not the prospect of indenite

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McGuire proposed a statutory nancial incentive for Justices to retire by setting higher pensions for those who retire before a specic age.149 A number of scholars have proposed a mandatory retirement age comparable to those found in other western democracies,150 and some have suggested that the Chief Justiceship be rotated or time-limited.151 Two different sets of authors, building on earlier work, have recently proposed schemes for eighteen-year term limits for Supreme Court Justicesone statutory and the other for a constitutional amendment. Both would apply only prospectively to new appointees. Professors Carrington and Cramton propose a statute that would, in effect, redene the ofce of Supreme Court Justice, making it one served for eighteen years after which the Justice, remaining an Article III judge, would serve on the lower federal courts and as a back up Justice on the Supreme Court if one of the nine more junior Justices were unable to sit on a case.152 A considerable number of academics, associated with different parties and ideologies, have expressed their agreement with the general principle of this statutory proposal.153 Professors Calabresi and Lindgren propose a constitutional amendment to limit terms on the Supreme Court to eighteen years.154 Each proposal generally contemplates selection of a new Justice every two years.
service, but the awareness that their continuation in ofce does not depend on securing the continuing approval of the political branches.). 149. Kevin T. McGuire, An Assessment of Tenure on the U.S. Supreme Court, 89 JUDICATURE 8, 15 (2005) (suggesting a statute providing for pensions of 200% of salary if Justices retire prior to a certain set age or term of years; and if a Justice were to retire after those points, he or she would receive 100% of salary as a pension). 150. See, e.g., WARD, supra note 9, at 12; Kramer & Barron, supra note 102, at 470 (suggesting that mandatory retirement statutes, applied only prospectively to judges appointed thereafter, would be constitutional); Resnik, supra note 78, at 61415, 64041. 151. See Alan B. Morrison, Opting for Change in Supreme Court Selection, And for the Chief Justice, Too, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 203, 21023; Judith Resnik & Lane Dilg, Responding to a Democratic Decit: Limiting the Powers and the Term of the Chief Justice of the United States, 154 U. PA. L. REV. 1575 (2006). 152. See Paul D. Carrington & Roger C. Cramton, The Supreme Court Renewal Act: A Return to Basic Principles (as revised Jan. 2005 and abbreviated July 2005), in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 46771. 153. The July 5, 2005, version of the Carrington-Cramton proposal includes a list of individuals who have endorsed the Carrington-Cramton proposal in principle, meaning, they have endorsed the statutory proposal in general terms without commitment to the specic form or language of either the proposed statute or the document presenting it. See Paul D. Carrington & Roger C. Cramton, The Supreme Court Renewal Act 2005: A Return to Basic Principles (July 5, 2005), http://paulcarrington.com/ Supreme%20Court%20Renewal%20Act.htm. The list of over fty names includes Professors Bruce Ackerman, Jack Balkin, Jerome Barron, Walter Dellinger III, Norman Dorsen, Richard Epstein, Richard Fallon, Lino Graglia, Yale Kamisar, Larry Kramer, Sanford Levinson, Frank Michelman, Richard D. Parker, H. Jefferson Powell, L.A. Scot Powe Jr., David L. Shapiro, Carol S. Steiker, Nadine Strossen, Laurence H. Tribe, and Mark Tushnet, among others. Id.; see also Paul D. Carrington & Roger C. Cramton, Reforming the Supreme Court: An Introduction, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 3, 57 (reproducing the list of names). 154. Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, 29 HARV. J. L. & PUB. POLY 769, 82431 (2006). The Calabresi-Lindgren and CarringtonCramton proposals build on earlier work. See, e.g., Philip D. Oliver, Systematic Justice: A Proposed

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Most other western democracies, including those whose high courts are regarded as independent and of high quality, provide for single nonrenewable terms, mandatory retirement ages, or both.155 These approaches thus appear to be compatible with judicial independence.156 The during good Behaviour provisions of Article III were enacted in the late eighteenth century, when average life spans were far shorter than today. Some reasons given at the time for providing life tenure, including the need to avoid judges worrying about earning a living after their service,157 have been basically mooted by the provision of pensions for Article III judges. And studies indicate some lengthening of the average term in fact served by Justices of the Supreme Court, though magnitudes depend somewhat on the precise periods selected for comparison.158 Thus, if we were starting from scratch in designing an independent judiciary, there would be a range of alternatives to life tenure, some perhaps superior, to consider. But we in the United States have an ongoing working system; we are not starting from scratch; making changes could have unforeseen effects, including a sense of diminished independence born from the direction of the proposed change. It is thus important carefully to consider the problems such a signicant change would address. Term limit proposals are motivated in part by frustration at the Courts

Constitutional Amendment To Establish Fixed, Staggered Terms for Members of the United States Supreme Court, 47 OHIO ST. L.J. 799 (1986). 155. See VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 49899 (2d ed. 2006); Ferejohn & Pasquino, supra note 146, at 1677 (describing the European model of long but nonrewable terms for constitutional court judges). Distinctions exist in many European systems between the terms for judges of specialized constitutional courts and for judges of ordinary courts. Compare, e.g., COST. [CONSTITUTION] art. 135 (Italy) (establishing nine-year nonrenewable terms for Constitutional Court judges), with id. art. 107 (ordinary judges may not be removed from ofce except by the judiciary council or on their consent), and WARD, supra note 9, at 14 (reporting that judges of the ordinary Italian courts have unlimited tenure but are removable by judicial disciplinary committees). 156. Either minimum age requirements for service or post employment prohibitions might, however, be helpful to avoid the judging as stepping stone problem of incentives, especially where nonrenewable single terms are used. Cf., e.g., KOMMERS, supra note 7, at 87 (noting the minimum age requirement of forty for appointment to the German Constitutional Court). 157. See THE FEDERALIST NO. 79, at 234, 235 (Alexander Hamilton) (Roy P. Faireld ed., 1981) (explaining opposition to a mandatory retirement age, like New Yorks age of sixty, for federal judges in part because most people who live above that age have their intellectual capacities intact and because where fortunes are not afuent, and pensions not expedient, it would be unfair to dismiss[] men from stations in which they have served their country long and usefully, [and] on which they depend for subsistence). 158. See, e.g., Calabresi & Lindgren, supra note 154, at 77881 (comparing 26.1 years average tenure for Justices retiring after 1970 with 14.9 years for Justices leaving ofce from 1789 through 1970; also showing an average tenure of 20.8 years for Justices who left ofce between 1821 and 1850); Resnik & Dilg, supra note 151, at 1594 (showing a fourteen-year average tenure for Supreme Court Justices whose tenure terminated between 1833 and 1853 and a twenty-four-year average tenure for Justices whose service terminated between 1983 and 2003). But see McGuire, supra note 149, at 912 (arguing that by several measures Justices are spending no more time on the Court than their brethren who have served over the past 150 years, and concluding that the announced retirement of Justice OConnor, together with one more vacancy (which soon thereafter arose with Chief Justice Rehnquists death) would return the Court to its historical norm median years of service).

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substantive decisions and workload (accompanied by worries over judicial hubris and potential overreaching from lengthy ofce holding);159 in part by concerns over the rancorous (and seemingly more ideological) nature of the selection process, believed to be related to the unpredictability of vacancies; in part by concerns whether opportunities for appointment are frequent enough for appropriate political accountability and distributed fairly across democratically elected presidential administrations; in part by increased knowledge of the structure and organization of other constitutional courts in the world; and in part by concern for the effects of age on mental acuity and the role of partisan factors in the timing of retirements. Both proposals are directed only at the Supreme Court, which is justiable since the Court is the nal decisionmaker, within the judicial hierarchy, on the meaning of laws. While space does not permit detailed consideration, each proposal raises serious concerns. To make such a large change by statute seems especially problematic160 for reasons that include its uncertain constitutionality,161 its complexity,162 and the possibility that to make such a change by statute would create a slippery slope towards a considerably less independent judiciary.163 Once some departures from existing understandings of life tenure are justied, the concern is it will become easier, and more tempting, to move towards others (for example, the removal of judges for reasons short of the impeachment standard). Before deciding whether a constitutional amendment to provide for staggered eighteen-year terms for members of the Supreme Court is, on balance, a good idea, careful analysis (beyond what space permits here) of the t between the problem and the remedy is required. For example, concerns for judicial disability have been largely addressed by existing law and practice, and decrepitude can emerge even during an eighteen-year term. If the concern is that the

159. See Carrington & Cramton, supra note 152, at 46869. 160. I say so with some hesitation, given the numbers of very highly regarded scholars who have reached other conclusions. See supra note 153. In addition to the arguments advanced by Professors Carrington and Cramton, see, for example, Resnik, supra note 78, at 64041 (suggesting that prospective application of statutory term limits would be constitutional under a functionalist approach to interpreting Article III). 161. See, e.g., John Harrison, The Power of Congress over the Terms of Justices of the Supreme Court, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 361, 372 (concluding that the proposed statute would not be constitutional); David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for the Golden Parachute, 83 WASH. U. L.Q. 1397, 140821 (2005) (reaching a similar conclusion); see also Stephen Burbank, Alternative Career Resolution II: Changing the Tenure of Supreme Court Justices, 154 U. PA. L. REV. 1511, 151213 (2006) (characterizing the constitutional question as neither uninteresting nor without difculty). 162. The authors of this proposal acknowledge that the legislation we propose is not as simple as we might wish. See Carrington & Crampton, supra note 152, at Conclusion. 163. See Ward Farnsworth, The Case for Life Tenure, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 251, 26667; Ward Farnsworth, The Regulation of Turnover on the Supreme Court, 2005 U. ILL. L. REV. 407, 45152 (2005) [hereinafter Farnsworth, The Regulation of Turnover].

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Supreme Court should better mirror present political sentiments,164 there is disagreement as a matter of principle about whether this goal is desirable or whether the structural role of the Court is not to provide a check on current politics and a link with our constitutional history, as Justices educated and trained in earlier generations review contemporary constitutional challenges.165 If the concern is to advance a particular ideology or methodology of interpretation,166 it is doubtful that any proposal along these lines will be effective over the long run because preferences as to substantive ideology and interpretive methodology may conict and the distribution of those preferences is unstable.167 On the other hand, if the concern is to remove the randomness of whether elected Presidents get to appoint Justices in numbers commensurate with their term and to assure more regular democratic inputs to the Court, staggered terms with appointments every two years would be effective towards that goal, but so would other approachesfor example, some expansion of the Supreme Courts bench or having staggered terms that expire every three or four years. Moreover, politically motivated retirementshowever large or small a problem this is consideredwould probably be limited under some versions of the proposal, though other approaches might also do so.168 Finally, if the concern is to reduce the rancor of the conrmation process, it is unclear whether staggered single terms would necessarily do so or if, given interest group politics around conrmations, it would turn an episodic fracas into a regular one.169 Indeed, one question for consideration might be whether a change to staggered, xed terms would require other changes, including supermajority voting rules in the Senate, to achieve its desired goals. A Supreme Court conrmation
164. See Calabresi & Lindgren, supra note 154, at 81011, 833 (arguing that turnover must be relatively frequent and regular for the democratic check on the Court through the appointments process to be effective, and that with more regular turnover, there would be a more direct link between the will of the people and the tenor of the Court). 165. Cf. Farnsworth, The Regulation of Turnover, supra note 163, at 41415 (describing the slower law of constitutionalism). 166. See, e.g., Calabresi & Lindgren, supra note 154, at 823, 85253 (suggesting that with staggered eighteen-year terms more originalist, or textualists, judges would be appointed). 167. Cf. Burbank, supra note 161, at 1514 (nding little basis to believe that the public at large has understandings of constitutional meaning, as opposed to results . . . , let alone understandings of competing interpretive approaches); id. at 1529 (reporting evidence of public views that would, in Professor Burbanks view, make a coherent approach to interpretation impossible, including strong support for reliance on specic intent of the drafters of the Constitution, for reliance on what the majority of the public favors, and for reliance on the judges views of what is good for the public (internal quotations omitted)). 168. See Calabresi & Lindgren, supra note 154, at 84142 (describing how, if a Justice retired before the end of his or her xed eighteen-year term, the retiring Justices successor would be appointed only to complete the remainder of a xed eighteen-year term). Fixed retirement ages, set appropriately, might also contribute to a norm of retirement at that age and thus diminish the likelihood of strategically timed resignations. 169. See Burbank, supra note 161, at 151415, 153747; see also Arthur D. Hellman, Reining in the Supreme Court: Are Term Limits the Answer, in REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, supra note 53, at 291, 298303.

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process predictably held every two years bears some risk of becoming even more of a media event than is currently the case. A heightened supermajority voting requirement would, on the whole, tend to produce nominees who could appeal more broadly to segments of both parties, based on their qualications, attitudes, and character, and might mitigate any tendency of a more regularized process to produce extended controversy and public posturing. These proposals raise interesting subject for debate about how to preserve the good that judicial independence promotes, while smoothing out opportunities for political accountability through appointments (and avoiding some concerns about disability and retirement). Some of the European courts have staggered terms for groups of justices that expire around the same time, offering, perhaps, the possibility of compromise over slates of nominees.170 Although many of the European courts rely on single nonrenewable terms, they do so for courts which, in the European tradition, are specialized constitutional courts that do not hear the range of cases the U.S. Court does.171 The supreme courts of Canada and Australia may be more comparable to the U.S. Court than the specialized constitutional courts of Europe; Canada and Australia, in the common law tradition, have generalist supreme courts with jurisdiction over constitutional and statutory matters, and their judges now serve until mandatory retirement ages.172 While it is healthy to look comparatively at how successful constitutional courts have been structured in other western democracies, it is important carefully to consider the contexts.173

170. See JACKSON & TUSHNET, supra note 155, at 49899 (describing nine-year terms for French Conseil Constitutionnel that are staggered, every three years, in groups of three); cf. id (noting informal cooperation among parties and chambers of the legislature in selection of the justices on the German Constitutional Court); KOMMERS, supra note 7, at 12844 (describing modus vivendi under which certain seats on the German constitutional court were understood to belong, by agreement, to different parliamentary parties to ll, subject to veto by the other). 171. See Victor Ferrera Comella, The European Model of Constitutional Review of Legislation: Towards Decentralization?, 2 INTL J. CONST. L. 461, 466, 47274 (2004). 172. See Constitution Act, 1867, 99 (Can.) (reecting a 1961 constitutional amendment setting the mandatory retirement age at seventy-ve). Australia amended its Constitution in 1977 to provide for a mandatory retirement age of seventy for its High Court and other federal judges. Constitution Alteration (Retirement of Judges) Act 1977 (No. 83 of 1977) (NAA: A1559/1, 83/1977), available at http:// www.foundingdocs.gov.au/amendment.asp?amID18#. Australian judges, like Canadas, are removable only by the governments address to the legislature, see Constitution Act, 1867, 99(1) (Can.) (judges to hold ofce during good behaviour and are removable by the Governor General on Address), and in Australia only on a nding of proved misbehaviour or incapacity. See CONST. OF AUSTL. art. 72(ii). 173. See Vicki C. Jackson, Comment, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 HARV. L. REV. 109, 12526 (2005) (noting the importance and difculty of determining comparability of contexts in comparing constitutional approaches). A thorough comparison of term limits and retirement ages would need to consider not only the jurisdiction of the respective courts in more detail than possible here (there are signicant differences, for example, among the three common law jurisdictions mentioned above in the authority of the national supreme court to decide common law issues), but also other constitutional features, including, for example, the ease or difculty of constitutional amendment, and possibly the nature of the appointment process itself within the broader political and electoral system.

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Other ideasfor example, very short terms for federal judges174are plainly designed to diminish judicial independence and move towards a more populist judiciary. As Chief Justice Rehnquist wrote in his 1992 book, Grand Inquests, the idea of an independent judiciary was one of the most original contributions to the art of government made by the Constitutional Convention that met in Philadelphia.175 The Senates rejection in the Chase impeachment of removal based on disagreement with a judges decisions or views was, in his view, central to the success of the idea of the independent judiciary; even though it would be easy at times of intense conict and polarization for those engaged in the struggle to see it as an apocalyptic confrontation between good and evil, when customary restraints must be cast off, enough Senators maintained their loyalty to the Constitution, over narrow partisan interest, to help secure judicial independence through their vote to acquit.176 At a time when more of the civilized world is moving to a system of independent courts for constitutional review, it would be quite a step for the United Stateswhich contributed the idea of judicial review by independent courts to the worldto move away from it. CONCLUSION Article III judges were designed to function with great independence independence from political and popular pressures and independence to interpret and apply the law, including the Constitution, so as to resist encroachments by other branches of government. This does not mean that courts necessarily have the nal word on large questions of substance. Legislative disagreements with judicial decisions interpreting statutes can be expressed in amended statutes. Disagreement with constitutional interpretations can sometimes be addressed through revised laws, through litigation over time, or through a constitutional amendment; term limits are not the only response to concerns about judicial policymaking or for more democratic forms of lawmaking. Just as it is almost impossible to envision a conrmation process in which politics and ideology play no roles, so it is difcult to imagine that, on deliberation, members of Congress or members of the public would abandon the tradition of strong judicial independence for the federal judiciary. The federal Article III courts function as part of a much larger set of connected systems of adjudicators, including the state courts and non-Article III federal courts. Many

174. See Saikrishna B. Prakash, Book Review, Americas Aristocracy, 109 YALE L. J. 541, 56869 (1999) (reviewing MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999)) (proposing that life tenure be eliminated for all federal judges and that they serve renewable, three, four, or six year terms); cf. John Andres, Cross Country: Ten Years and Out, WALL ST. J., Aug. 10, 2006, at A9 (praising a Colorado ballot initiative that would limit state supreme court judges to ten year terms as a way to make judges more respectful of the plain language of the constitution and more responsive to the sovereign will of the people). 175. REHNQUIST, supra note 94, at 275. 176. Id. at 27578.

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other courts, federal and state, whose judges lack Article III protections, make initial decisions on these important questionsand most of these decisions end up not being reviewed in an Article III court. Yet they are made in the shadow of the supremacy of federal law and the possibility of Article III court review.177 The United States is unusual, not only in providing for life-long tenure for its Article III judiciary (including the Supreme Court), but perhaps even more so in the degree to which it relies on popular elections for the selection or retention of its state court judges, some of whom serve fairly short terms before they must stand for re-election.178 The strong institutional independence of Article III judges anchors the legal infrastructure that accommodates elected judges in the

177. Supreme Court review of state court judgments and the availability of the inferior federal courts to assure the constitutionality of state laws and the states compliance with federal norms under the Supremacy Clause are fundamental to the overall operation of the U.S. Constitution and the American court systems. Examples, newer and older, are legion. See, e.g., Hope v. Pelzer, 536 U.S. 730 (2002); Monroe v. Pape, 365 U.S. 167 (1961); Powell v. Alabama, 287 U.S. 45 (1932); Martin v. Hunters Lessee, 14 U.S. (1 Wheat) 304 (1816); see also Lawrence Gene Sager, The Supreme Court, 1980 TermForeword: Constitutional Limitations on Congress Authority to Regulate the Jurisdiction of the Federal Courts, 95 HARV. L. REV. 17, 4557 (1981) (arguing that the interrelated importance of the supremacy clause and the judiciary article . . . did not escape the framers; that the Supreme Courts superintendence of state compliance with national law emerged as the fulcrum of the national government; and concluding that the history and logic of the Constitution support treating superintendence of the states compliance with supreme federal law as an essential function of the federal judiciary); cf. O.W. HOLMES, COLLECTED LEGAL PAPERS (29596) (1920) (I do not think the United States would come to an end if we lost out power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.), quoted in GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 50 (4th ed. 2001). 178. See Lydia B. Tiede, Positive Political Theory and Law, 15 J. CONTEMP. LEGAL ISSUES 129, 140 (2006) (reporting that 86% of all judges in the United States stand for election); Hans Linde, Elective Judges: Some Comparative Comments, 61 S. CAL. L. REV. 1995, 1996 (1988) (To the rest of the world the American adherence to judicial election is as incomprehensible as our rejection of the metric system.); see also HERBERT JACOBS ET AL., COURTS, LAW AND POLITICS IN COMPARATIVE PERSPECTIVE 390 (1996) (nding that among the countries studiedthe United States, England, France, Germany, and Japanthe United States uses the most partisan selection process, including popular elections of state court judges, and that its ordinary judges have more political ties); Erhard Blankenberg, Changes in Political Regimes and Continuity of the Rule of Law in Germany, in JACOBS ET AL., supra, at 24950 (Popular election of judges, and certainly campaigns to get votes, would in the eyes of a European judge bring about an unsupportable degree of political dependence.). On terms for elected judges in the United States, see Roy A. Schotland, Comment, 61 LAW & CONTEMP. PROBS. 149, 153 (1998) (reporting that 62% of elected trial judges, after an initial term that may be even shorter, serve six-year terms, while 45% of elected appellate judges serve six-year terms). Although elected judges are not completely unheard of in other countries, see CONST. art. 152 (1993) (Peru) (authorizing elections for justices of the peace; other judges to be appointed); Wolf Linder & Isabelle Steffen, Swiss Confederation, in LEGISLATIVE, EXECUTIVE AND JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES 290, 306 (John Kincaid et al. eds., 2006) (noting that some Swiss cantons rely on popular elections for judges), they are [Constitution], art. 79, para. 2 (Japan) (providing for retention elections every ten very rare. Cf. KENPO years for Supreme Court Justices (who are appointed to ofce)); Takaaki Hattori, The Role of the Supreme Court of Japan in the Field of Judicial Administration, 60 WASH. L. REV. 69, 76 n.39 (1984) (stating that votes for dismissal have never been more than eleven percent and no justice has been removed through this provision).

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state courts with the rule of law. This anchoring role of the Article III judiciary provides added reason why proposals to jettison central features of the traditional structure of federal judicial independence should be evaluated with great caution. For the federal courts do not function alone, but as part of a broader federal system.