             Proposed Constitutional Amendment to Limit
                        the Tenure of Judges

A proposed constitutional amendment to limit the tenure of judges to a term, subject to reconfir­
   mation, is antagonistic to the overall structural design of the Constitution.

The present guarantee o f judicial tenure “during good Behaviour," U.S. Const, art. Ill, § 1, is
  necessary to secure independence and impartiality. Judges limited by term and subject to
  reappointm ent will be unacceptably dependent upon the political branch exercising the power
  of appointment.

Under the specific proposal the appointing authority would be the Senate, thereby frustrating the
  present delicate balance between the legislative and executive branches that exists with
  respect to judicial appointments.

                                                                                    January 18, 1984

      Letter      to the    C h a ir m a n , S e n a t e C o m m it t e e   on th e   J u d ic ia r y


   This responds to your request for the views of the Department of Justice on
S.J. Res. 39, 98th Cong., 1st Sess., which would propose a constitutional
amendment pursuant to which federal judges would be appointed for a term of
office of ten years and hold office for that term during good behavior. The bill
would provide that:
        During the tenth year of each term of office of any such judge,
        his nomination for an additional term of office for that judgeship
        shall be placed before the Senate for its advice and consent to
        such additional term, unless that judge requests that his nomina­
        tion not be so placed. Any judge whose nomination for an
        additional term of office is so placed may remain in office until
        the Senate gives its advice and consent to, or rejects, such
        nomination.
Although the proposal is not explicit as to the manner in which a judge’s
nomination is to be placed before the Senate, the implication to be drawn from
the language of the resolution is that, unless the judge requests that his name
not be considered, the nomination is submitted to the Senate automatically by a
procedure not involving the President.1
  1 U nder the C onstitution, the President’s functions are, with a few exceptions, discretionary rather than
m inisterial. We therefore do not interpret the proposal as intending to impose on the President a ministerial
duty to renom inate a ju d g e w hose term is about to expire.

                                                     i
   In commenting on the proposed amendment, the Department of Justice
acknowledges that Article V of the Constitution assigns to Congress the
responsibility for proposing constitutional amendments to the States and that
the Executive branch has no direct role in this process, in particular that joint
resolutions of this variety are not subject to the veto power of the President,
H ollingsw orth v. Virginia, 3 U.S. (3 Dali.) 378 (1798). Nonetheless, you have
asked for the views of the Department of Justice, and we set them forth in this letter.
   The Department of Justice strongly opposes the proposed amendment. The
constitutional requirement “that the judges, both of the supreme and inferior
Courts shall hold their Offices during good Behaviour,” U.S. Const, art. Ill,
§ 1, is one of the cornerstones of the constitutional plan for the independence of
the Judicial Branch and therefore of the separation of powers, the basic struc­
tural doctrine of the Constitution. Northern Pipeline Constr. Co. v. Marathon
P ipe Line Co., 458 U.S. 50 (1982).
   In The F ederalist No. 78, Alexander Hamilton stated:
           The standard of good behavior for the continuance in office of
           the judicial magistracy is certainly one of the most valuable of
           the modem improvements in the practice of government. In a
           monarchy it is an excellent barrier to the despotism of the
           prince; in a republic it is a no less excellent barrier to the
           encroachments and oppressions of the representative body. And
           it is the best expedient which can be devised in any government
           to secure a steady, upright, and impartial administration of the laws.
The F ederalist No. 78, at 465 (A. Hamilton) (C. Rossiter ed. 1961).2
  During the last decade Congress, including your Committee, conducted
extensive and searching inquiries into the crucial interrelationship between the
independence of the judiciary and the provision in Article III for judicial tenure
during good behavior terminable only by impeachment proceedings. The issue
arose in connection with legislative proposals to provide in judicial proceed­
ings for the removal or the involuntary retirement of judges who had allegedly
violated the good behavior requirement or who had become incapacitated.
Senators and Representatives o f both political parties considered this proposal
so serious a threat to the independence of the judiciary that it was ultimately
abandoned and replaced by the disciplinary provisions of § 3 of the Judicial
Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Stat.
2036 (codified at 28 U.S.C. § 372(c)).3
  2 In Toth v. Quarles, 355 U .S. 11,1 6 (1 9 5 5 ), the Suprem e C ourt stated: “The provisions o f A rticle III [of the
C onstitu tio n , w hich include the Good B eh av io r C lause] w ere designed to give judges maximum freedom
from possible coercion o r influence by th e executive o r legislative branches o f the G overnm ent." See
generally United States v. Will, 449 U.S. 200, 21 7 -1 9 (1980); Northern Pipeline Constr. Co. v. Marathon
Pipe Line Co.. 458 U .S. 50 (1982).
  3 S. R ep. No. 3 6 2 ,96th C ong., 1st Sess. 4 - 7 ,2 3 ,2 9 - 3 0 (1979); H.R. Rep. No. 1313,96th Cong. 2d Sess. 1-
5, 1 6 -1 9 (1980); Hearings on the Independence o f Federal Judges before the Subcomm. on Separation o f
Powers o f the Senate Comm, on the Judiciary, 91st C ong. 2d Sess. 329-51 (1970); Hearings on Judicial
Tenure and Discipline 1979-1980, before the Subcomm. on Courts, Civil Liberties, and the Administration o f
Justice o f the House Comm, on the Judiciary. 96th C ong., 1st & 2d Sess. (1980).

                                                           2
   For example, Senator Laxalt stated his view that even 28 U.S.C. § 372(c) as
ultimately enacted went too far in impinging on judicial independence. He stated:
            Lifetime appointment and a slow and cumbersome system of
         impeachment have insured us of a Federal judiciary which re­
         mains free and independent, and has helped to assure us that
         cases are decided on their merits and on the law. Where unpopu­
         lar decisions are warranted by the law, as they often are, a judge
         may render such a decision knowing that he will be free of
         pressure from the public, from the press, and from the rest of the
         judiciary. We are assured, in short, that the case will be decided
         as it should be, and according to law.
            The Federal Courts are the final link in our system of checks
         and balances. They are the last to act, and the last to change.
         After the legislature and the executive branches have acted, after
         the press has analyzed, reported and commented, and even after
         the public has experienced changes and additions to our system
         and to our laws, the courts finally rule on the legality, the
         constitutionality, the application, and the scope of those changes
         and laws. That review follows the debate on the need for and the
          advisability of such changes with good cause. Making that
         process more susceptible to political pressure will not, in my
         opinion, improve our system of Government.
S. Rep. No. 362, 96th Cong., 1st Sess. 29 (1979).
   Proposals to appoint judges for terms of years “to make their decisions
conform to the will of the people” are not new.4 A century-and-a-half ago
Justice Story felt it necessary to demonstrate that the appointment of judges for
terms of years would not have the effect of subjecting their decisions to the
“will of the people” but rather would make judges subservient to the political
branches of the Government, and make the meaning of the Constitution depen­
dent on every biennial or quadrennial election rather than on the judges’
deliberate judgment. 2 J. Story, Commentaries on the Constitution o f the
United States, §§ 1613-1621 (5th ed. 1891).
   The following passages are representative of Justice Story’s discussion:
           If the judges are appointed at short intervals, either by the
        legislative or the executive department, they will naturally, and,
        indeed, almost necessarily, become mere dependents upon the
        appointing power. If they have any desire to obtain, or to hold
        office, they will at all times evince a desire to follow and obey
        the will of the predominant power in the state. Public justice will
        be administered with a faltering and feeble hand. . . . It will
        decree what best suits the opinions of the day, and it will forget
        that the precepts of the law rest on eternal foundations.
  4 See 2 J. Story, Commentaries on the Constitution o f the United States, § 1615 (5th ed. 1891). The first
edition o f the Commentaries was published in 1833.

                                                    3
                                          * * *

           If the will of the people is to govern in the construction of the
        powers of the constitution, and that will is to be gathered at
        every successive election at the polls, and not from their deliber­
        ate judgment, and solemn acts in ratifying the Constitution, or in
        amending it, what certainty can there be in those powers? If the
        Constitution is to be expounded, not by its written text, but by
        the opinions of the rulers for the time being, whose opinions are
        to prevail, the first, or the last? When, therefore, it is said that the
        judges ought to be subjected to the will of the people, and to
        conform to their interpretation of the Constitution, the practical
        meaning must be, that they should be subjected to the control of
        the representatives of the people in the executive and legislative
        departments, and should interpret the Constitution as the latter
        may, from time to time, deem correct.
Id. §§ 1613, 1616. The logic of Justice Story’s analysis is still valid. If judges
are appointed for a definite term subject to reappointment, it is inevitable that at
least some of them will seek to avoid offending those who have the power to
block their reappointment. It would, of course, be possible to guard against that
danger by providing that judges would be ineligible for reappointment. In that
event, however, many lawyers, although highly qualified to become judges,
might be reluctant to give up their practice for a temporary judicial appoint­
ment, and even among those who do, some may be suspected toward the end of
their term of seeking to curry favor with those who may be of assistance to
them in reentering private practice. See The F ederalist No. 78, supra, at 471.
   For the foregoing reasons, and without intending to foreclose further con­
gressional consideration of the good behavior issue or the entirely separate
issue of “judicial restraint,” the Department of Justice is in principle opposed to
the abolition of tenure during good behavior for the federal judiciary as
contemplated by S.J. Res. 39. Two significant aspects of S.J. Res. 39 which
aggravate the harm connected with the abolition of such tenure require addi­
tional comment.
   First, as we understand the proposal, the renomination of a judge whose term
has expired would come automatically before the Senate, and if the Senate
were to give its advice and consent to the additional term, the term would be
automatically extended. The President would take no part in the processes of
nomination and appointment; he would not have the power to refuse to renomi­
nate a judge or to deny reappointment to a judge to whose reappointment the
Senate has given its advice and consent. The reappointment process thus would
be under the exclusive control of the Senate. The Department of Justice
strenuously objects to this aspect of the joint resolution, because it is in conflict
with the constitutional plan embodied in Article II, § 2 of the Constitution,
pursuant to which the nomination and appointment of federal officers are the
discretion ary acts of the President, even if as regards certain officers the latter
can be performed only with the advice and consent of the Senate. Marbury v.
                                           4
Madison, 5 U.S. (1 Cranch) 137, 155 (1803). We are not aware why this rule
should not apply to the reappointment of judges. Indeed, this aspect of the joint
resolution accentuates the objections to the provisions giving judges terms of
years, because it makes judges dependent exclusively on the Senate for their
reappointment. This alters the constitutional plan of checks and balances and
tilts the scale toward one branch, the Legislative, and away from the Judiciary
and the President.
    Second, the joint resolution would provide that when a nomination for an
additional term is placed before the Senate, the judge “may remain in office
until the Senate gives its advice and consent to, or rejects, such nomination.”
By refusing to take any action on the renomination, the Senate, or indeed a
Committee of the Senate or, under Senate practice relating to confirmations,
initially one Senator,5 can place the judge in a position for an indefinite period
in which he or she can be ousted at any time for any decision which may
displease the Senate. To have such a sword of Damocles hang over a judge is
totally inconsistent with our constitutional system of three separate branches
“entirely free from the control or coercive influence direct or indirect of either
of the others.” H um phrey’s Executor v. United States, 295 U.S. 602 (1935). As
the Court held in that case: “[I]t is quite evident that one who holds his office
only during the pleasure of another cannot be depended upon to maintain an
attitude of independence against the latter’s will.” Id. at 629.
    We should not forget that one of the charges against King George III in the
Declaration of Independence was:
          He has made Judges dependent on his Will alone for the tenure
          of their offices, and the amount and payment of their salaries.
The Department of Justice therefore opposes the proposed constitutional amend­
ment.
  The Office of Management and Budget has advised that it has no objection to
the submission of this report from the standpoint of the Administration’s
program.

                                                                 R o bert A. M cC o n n ell
                                                              Assistant Attorney General
                                                              Office o f Legislative Affairs *




  5 In The Changing Role o f the Senate Judiciary Committee on Judicial Selection, 62 Judicature 502, 504-05
(1979), Professor Slotnick docum ents the fact that, under the “Blue Slip” procedure, a single Senator o f the
nom inee’s home state may prevent the scheduling o f the hearing and consequently the advice and consent o f
the Senate on a Presidential nominee. See also Slotnick, Reforms in Judicial Selection: Will They Affect the
Senate’s Role?, 64 Judicature 60, 6 2-63 (1980). This process is also described in Adams and Kavanagh-
Baran, Promise and Performance: Carter Builds a New Administration 111-13 (1979). Thus, a single S enator
could utilize current practices to keep a ju d g e ’s reconfirm ation in suspense for an indefinite period o f time.
  * NOTE: T his letter was drafted by the O ffice o f Legal Counsel for the signature of the Assistant Attorney
G eneral for the O ffice o f L egislative A ffairs.

                                                        5
