Professor Richard Hasen and Dahlia Lithwick are right on state judicial election ads but a similar and more serious problem lurks for the Supreme Court (and possibly the rest of the federal judiciary)

Last Wednesday, I posted a video of a mock ad for a judge that ridiculed advertising for judges who run for elections. It was funny. But, as the real ads become more and more numerous, misleading, vicious, and explicitly partisan, there is a serious consequence to judicial advertising. The public begins to see judges as nothing more than politicians in black dresses.

Thus, I couldn’t agree more with the thrust of Professor Hasen and Ms. Lithwick’s Slate article entitled Lousy Judgment, This year’s scary election ads will destroy any lingering confidence in the judicial branch (October 31, 2014).* As the authors state, “the real effect of these increasingly nasty ads, and the fundraising demands that come along with responding to these increasingly nasty ads, is an aggregate loss of confidence in the capacity of the judicial branch to be fair and unbiased.”

What frightens me even more than these angry, inane, uninformative, untrue and, yes, scary ads for state judicial officers is the ill-conceived notion that we ought to do away with lifetime appointments to the Supreme Court and instead adopt a system of term limits for the Justices. If we fear the explicitly partisan judicial jousting in some of our states, we ought to be terrified at the idea of nationalizing this idea for the Supreme Court.

One of the most “popular” term limits proposals, at least among the elites, would limit the Justices’ active service to 18-year terms so that a new member would be nominated in each odd year, giving presidents 2 nominees for each 4-year executive term.  That is exactly what we don’t need if we care about the public’s confidence in the Court.**

We don’t need a hyper-partisan confirmation fight of monumental proportions every two years driven by the President’s “right” to select his or her “own” to serve on the Court. At the level of the Supreme Court and throughout the nation, the adoption of such a proposal would finally put a stake through the heart of the principle that law is not politics by another name.***

As Professor Thomas W. Merrill, the Charles Evan Hughes Professor of Law at the Columbia Law School, has said, “Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution.” In other words, term limits would likely erode public perceptions (even more) of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president. I hope that does not come to pass. The consequences are scary.



*The irony of my agreement with Professor Hasen and Ms. Lithwick will not be lost on those who read this blog regularly.

**The idea would surely “trickle down” to the lower federal courts. For example: “There is something more required for federal district judges. Similar term limits and no-confidence votes by the state legislatures in their districts would likely help a lot. Perhaps having the nominees approved by state legislatures in their district rather than the Senate would be a good idea.” aurorawatcherak, Reforming the SCOTUS  (April 1, 2014). Indeed, Linda Greenhouse, who is many things but not a nut, explicitly calls for the adoption of a Constitutional amendment of Article III that would apply to the lower courts. The amendment she endorses reads this way: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour for a non-renewable term of 18 years, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” At nearly 68, and on senior status, they can’t get me.  Except for my love of the federal judiciary, I have no personal interest in these matters.

***Maybe this is not a principle but rather a pretense. If that is true, it was not always so and one can hope that the principle is restored in the future. Moreover, even it is and will always remain a pretense, it is a pretense worth preserving. Sometimes, pretenses serve to constrain the behaviors of even the most strong-willed and potentially partisan among the judiciary. I know that from personal experience.

%d bloggers like this: