An activist judiciary has joined the legislative and executive branches in making public policy. The influence of judges has been magnified by their relative immunity from political pressure. Although the courts sometimes follow the election returns, in many cases, such as abortion, judicial decisions have short- circuited normal political discourse.
That fact alone makes judicial appointments important. Their significance is increased by life tenure enjoyed by federal judges, particularly Supreme Court justices. Lose the battle over filling a Supreme Court slot and you suffer the consequences for decades.
There are other consequences of lifetime tenure. The appointment process has become ever more arbitrary as judges hang on despite advancing age.
Supreme Court -- A Wednesday commentary on term limits for federal judges had the wrong given name for the late Supreme Court Justice Blackmun. It is Harry, not William.
The last justice to retire was William Blackmun in 1994. He served 24 years. Before 1970, the average term served was a bit over 15 years. Since 1970, justices have averaged 25.5 years. The age at retirement has jumped a decade, to nearly 79. Today, only Clarence Thomas is under the traditional retirement age of 65.
Most Supreme Court members have avoided obvious infirmity. However, William O. Douglas, who served more than 36 years before retiring in 1975, was evidently failing after a stroke. Chief Justice William Howard Taft pressured ailing Associate Justice Joseph McKenna to quit in 1925. Current Chief Justice William Rehnquist is seriously ill with thyroid cancer.
Another concern is that long-serving justices tend to be less conversant with current culture. Proper constitutional interpretation obviously can survive a lack of familiarity with, say, rap music. More serious, however, is the concern that comfortable patterns of thinking can go unchallenged for years.
The justification for life tenure is most obviously history: It is enshrined in the Constitution. More important, lifetime appointments help insulate the courts from transient political pressures.
Such protection is necessary if judges are to sometimes make unpopular decisions upholding the nation's fundamental law. And judicial independence is important. Critics of judicial overreaching have proposed a number of steps -- limiting court jurisdiction or impeaching errant jurists, for instance -- that could be abused.
Still, the judiciary, no less than the executive and legislative branches, must be held accountable. Unreviewable power is always dangerous.
