Term limits for all federal judges should be the law. Many years ago, humans in the U.S. and elsewhere did not live to the ripe old ages they do now. Congress established the Supreme Court in 1789 and the average age of a Justice was 40-45 and “he” could be expected to live until 69 if norms prevailed. These days the average life expectancy is 79.68 in the U.S. Ruth Joan Bader Ginsburg is 83.

Ginsburg’s comments about Donald Trump probably violate the spirit of the court’s ethical rules. If Trump were elected, Ginsburg would likely have a conflict between her private beliefs and the responsibilities of her job as a sitting Supreme Court Justice. But that doesn’t mean she would have to recuse herself (and she alone makes recusal decisions) from any case where Trump’s interests were at stake. The issue is not about conflicts; it is about an aging Justice making a fool out of herself: Her time has come and went. Justice Scalia was wading in those same waters before he died. Both needed to move on from the court.

The other thing is, most federal judges are appointed and approved through the political process. If a Presidential nominee for any federal court has alienated one of the political parties, he or she is unlikely to garner the needed votes for approval. The business of appointing federal judges is very political. It is time to recognize this fact and to change the way one becomes a federal judge, and that is through the elected process. The lower judges would still have to follow legal precedent, and the Supreme Court would still interpret the U.S. Constitution, albeit with previously announced (presumably through their campaign promises) intentions. This process would not differ much from the current process except that under the lifetime appoint rule, a person could renege on their words and not face a re-election.

Apparently, the framers of the Constitution valued age or at least attributed wisdom with experience and age. It is hard to imagine that they believed that one could remain a valuable asset when they were approaching the last years of their lives. In the real world, like in business, entertainment, sports and most other professions, one becomes disqualified when obtaining a certain age. The U.S. Supreme Court is an exception to this near-universal rule– it must change and the election process would help do this. 







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  1. […] Some argue that state judges should be appointed for life, so they would immune from electorate pressure, the same way federal jurists are. We disagree with this approach since all judges should be accountable to the voters and be required to run for election. […]

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