Judge Albert Diaz began his E. Harold Hallows Lecture at Marquette Law School last week by saying that he was going to offer thoughts on life tenure for federal judges ”which I’m pretty confident do not reflect the views of many, if not all, of my judicial colleagues.”
But Diaz, a judge since 2010 on the U.S. Court of Appeals for the Fourth Circuit, thought the ideas he presented to be worth considering, especially at a time when concerns about the U.S. Supreme Court, including how justices are appointed, are getting so much attention.
In his Eckstein Hall lecture, Diaz outlined arguments for and against both life tenure for federal judges and election of judges. He traced the debate back to the U.S. constitutional convention in 1787 and the opposing views for and against life tenure. The former prevailed, of course.
“The act of judging is not for the faint of heart,” Diaz said. “Judging is a human endeavor” and decisions are “not always free from taint.” But it is difficult to decide what “on the front end,” i.e., in determining who will be a judge, would best minimize the chances of tainted judicial work.
“Having judges or forcing judges to act like politicians, it seems to me, is patently inconsistent with the role of the judicial branch,” Diaz said, in disfavoring elections. “To say that this system of selecting judges undermines the public’s perception of the courts as fair and impartial is, I think, an understatement.”
But appointing justices and judges is not a panacea, he said. It trades one set of problems for another. A system based on appointments could serve to narrow the field of applicants and limit people from minority groups or women. “If judicial independence means anything, it must mean that our bench must reflect the voices and experience of our diverse society,” he said.
In any event, the process for selecting judges only deals with “half the puzzle,” Diaz said. The other half is how long is too long for a judge to stay on the bench and what can be done to end the service of a judge not up to the work. Diaz cited instances across the history of the U.S. Supreme Court involving justices who remained on the bench when physical or mental impairments were interfering with their ability to function. Since 1980, he said, people can file complaints against federal district and appeals judges who they contend are too impaired to be on the bench, but Supreme Court justices are not included under that law.
“So, what to do?” Diaz asked. He said any solution needs to preserve judicial independence. But, he suggested, there are ideas worth considering involving appointment for limited terms.
He pointed to a piece in the Fall 2015 Marquette Lawyer magazine in which Dean Joseph D. Kearney described a proposal, put forth by the State Bar of Wisconsin, to have each member of the Wisconsin Supreme Court elected to a term of 16 years, without an opportunity to run for reelection. And Diaz described the practice of the United States Court of Appeals for the Armed Forces. The five judges on that court each serve a single 15-year term with no chance for reappointment.
Diaz called an idea from law professors Steven G. Calabresi and James Lindgren in the Harvard Journal of Law and Public Policy in 2006 “a proposal that I think I find somewhat attractive.” The two suggested a system in which Supreme Court justices would be appointed to terms of 18 years, with no reappointments permitted. There would be one appointment every two years, which would allow presidents during each term to have equal opportunities to make appointments. The cycle of new appointments would provide fresh intellectual energy to the Court on a regular basis. Diaz said such a system would reduce the problem of justices serving past the point of mental and physical fitness and “lower the temperature” around the debate over individual appointments.
“The odds of enacting such a revolutionary change are not all that good,” Diaz said. But, he added, “The presidential campaign has shown us that the American people and the candidates are in a foul mood and are eager for change.” He also cited recent pieces in national news media outlets discussing the idea.
“My advice: Stay tuned,” Diaz said.
Video of Diaz’s lecture may be viewed by clicking here.