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Slate's Jurisprudence: A Lifetime on the Bench


This is DAY TO DAY. I'm Madeleine Brand.

If President Bush's Supreme Court nominee John Roberts is confirmed by the Senate, he will, of course, have a job for life. In fact, he already does have a job for life because he's a federal appeals court judge, but some have pushed for judicial term limits, arguing that judges can become out of touch with ordinary citizens. In fact, one person who's made that argument in the past is John Roberts. And joining us to discuss this is Dahlia Lithwick, the legal analyst for the online magazine Slate.

And, Dahlia, when and where did Roberts make that argument?


Well, Madeleine, he made it in 1983 when he was a young attorney in the Reagan White House and he wrote a memo to then White House counsel Fred Fielding in response to a Senate proposal for 10-year term limits for federal judges, saying, quote, "Setting a term limit of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," end quote. Ironically, he's now poised to sit on the court for 30 to 35 years.

BRAND: Well, the main reason for lifetime appointments was to keep judges beyond the reach of everyday politics and the push and pull of public opinion. So are people now rethinking that idea?

LITHWICK: Yeah. In fact, a lot of very well-respected legal scholars on both sides of the political spectrum are rethinking it. And certainly I think if the judge has a political agenda or ax to grind, the notion that they can sit on the bench for 30 years and really reshape the judicial landscape is an alarming one. The whole point of not having term limits for judges, the point of having no way to remove them unless they behave extraordinarily badly, is that the judiciary's not supposed to be beholden to the masses. They're certainly not supposed to be beholden to majorities. And so this criticism that they're, quote, "out of touch," you know, that they're better judges if they know who won "American Idol" or if they're reading Archie comics is a little bit, I think, disingenuous, a little bit of sort of anti-elitist demagoguery.

BRAND: Well, what do people mean when they say out of touch? Do they mean out of touch as you say with the popular culture or do they mean just really too old to sit on the bench?

LITHWICK: I think they mean both things. I mean, I think one very legitimate complaint is that judges are now serving a lot longer than was intended when the framers were around. Judges are serving on average 10 years longer. And as a consequence, I think there is a feeling that they're simply there too long, they become old and senile and there's no way to remove them. But as I said, I think there's another strain of the criticism which is they're elitist, they're liberal, they're not aware of what the vast majority of the populace wants, and I think that's a sort of dangerous way of talking about the judges as out of touch.

BRAND: So what do you think the ultimate effect would be if we did have shorter terms for judges?

LITHWICK: I mean, certainly the upside is that each appointment would be less fraught politically. We wouldn't have the sort of huge psychodrama we're having now. And I think that justices would be less careful. They wouldn't, for instance, time their retirements to coincide with being replaced by a president that they respect. And certainly you would have that sort of quality of fresh blood, new ideas. But I think the downsides are really significant. You'd have a much less stable judiciary. You wouldn't have a judiciary that can do what the Rehnquist court has done, which is defend often unpopular decisions for years and years simply because it's in their view the right thing to do. I think you'd suddenly have the appearance of a judiciary that's much more beholden to the people. It's important to sort of think back to what Alexander Hamilton wrote in "The Federalist Papers" when he said the reason to have lifetime appointments is because, quote, "nothing will contribute so much to the independent spirit in the judges which must be essential to the faithful performance of so arduous a duty." I think what he was saying is that the judiciary is simply different. It's a third branch of government that doesn't have to be beholden in the same ways. And you either believe that notion or you don't.

BRAND: Opinion and analysis from Dahlia Lithwick. She's the legal analyst for the online magazine Slate and a regular guest here on DAY TO DAY.

Thanks, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: DAY TO DAY returns in a moment. I'm Madeleine Brand. Transcript provided by NPR, Copyright NPR.

Madeleine Brand
Madeleine Brand is the host of NPR’s newest and fastest-growing daily show, Day to Day. She conducts interviews with newsmakers (Iraqi politicians, US senators), entertainment figures (Bernardo Bertolluci, Phillip Seymour Hoffman, Ricky Gervais), and the everyday people affected by the news (an autoworker laid off at GM, a mother whose son was killed in Iraq).