A New Look at an Old Debate: Life Tenure and the Article III Judge

Michael J. Mazza, A New Look at an Old Debate: Life Tenure and the Article III Judge, 39 Gonz. L. Rev. 131 (2004).

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How long should federal judges serve? Although Article III judges have traditionally enjoyed life tenure, many commentators today – from both ends of the political spectrum – are questioning the wisdom of this practice. Some have proposed specific strategies for changing the status quo, including everything from asking judicial nominees to promise that they will retire to amending the Constitution.

Some critics of the present system bemoan the tendency for life tenured judges to time their retirement with the crest of their political party’s strength in Washington, D.C., thus politicizing the supposedly non-partisan appointment process. Others call for restrictions on a judiciary they see as bent on usurping power and skirting the democratic process.

Modern participants in the life tenure debate tend to focus their attention on the nine justices of the United States Supreme Court. Notwithstanding the Court’s tremendous power, ignoring the inferior courts may be myopic. Nearly twenty times as many judges preside over the United States Courts of Appeal than over the Supreme Court, all of whom also enjoy life tenure under Article III of the Constitution. Given the extremely small percentage of cases that are heard each year by the Supreme Court, these federal appellate courts essentially function as the courts of last resort for most Americans. Their burgeoning caseload is but one indicator that their decisions are having an increasing influence on our society. Consequently, the life tenure question is not merely an academic one…. Read More

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