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Pros and cons of potential tenure limits for Supreme Court judges

Columbia Law School professor Thomas W. Merrill debates Northwestern's James Lindgren over the amendment to the constitution

New York, March 25, 2014— A proposed constitutional amendment that puts tenure limits on US Supreme Court justices could move the court further toward a lively constitutional approach to constitutional interpretation, Columbia Law School professor Thomas W. Merrill said in a debate with the Northwestern professor University School of Law March 11th James Lindgren. Lindgren, a former classmate and colleague of Merrill's at the University of Chicago and Northwestern respectively, opened the debate by advocating a constitutional amendment that would introduce term limits for Supreme Court justices. He proposed limiting the judges' term of office to 18 years after a transition period from the current system, so that a new member would be nominated every odd year, giving the president two candidates for every four-year term. Presenting evidence that judges have tended to linger longer in court over the past few decades than their predecessors, he argued that the term limit would help bring the Supreme Court back to its historic norm of shorter terms. With the exception of the state of Rhode Island, no other western jurisdiction has a lifetime tenure for Supreme Court justices, Lindgren said. Term restrictions would help dismiss judges with mental weakness and loss of stamina, eliminate strategic retirement for political reasons, reduce hostility in the affirmation, and return to traditional levels of judicial independence. Charles Evan Hughes Professor of Law, Merrill, alleged that term restrictions could undermine the public perception of the Supreme Court's legitimacy by associating judges more closely with the outcome of the controversial presidential election. Term restrictions would reshape the court's role to reflect the political views of presidents, not the more subtle role required by the constitution, he said. Citing his previous service as assistant attorney general, Merrill said the Supreme Court, with or without term limits, may be too rare and isolated to give American citizens a voice in the judicial process. The question is how to get the place of legislation to the people, away from the court, Merrill said. We are stuck in a situation where judges who are effectively captured by their bailiffs make decisions without necessarily referring to the views of the community. The debate was sponsored by the Columbia Law School Federalist Society.

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March 25, 2014

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