95 Geo. L.J. 965 (2006-2007)
Packages of Judicial Independence: The Selection and Tenure of Article III Judges

handle is hein.journals/glj95 and id is 977 raw text is: Packages of Judicial Independence: The Selection
and Tenure of Article III Judges
Selection and tenure rules are important parts of the packages of institutional
designs that protect the independence of judges. The appointments process is a
political one by constitutional design; it allows for a form of democratic participa-
tion, through elected representatives, in the selection of federal judges. Through a
variety of rules-some constitutional, others a matter of Senate or White House
practice-this process has worked in complex ways to accommodate concerns by the
political branches about partisan affiliation and ideology, competence, and the
demographic mix of appointees. Although most nominees to the Article Ill courts
continue to be approved by overwhelming majorities in the Senate, the rancor of the
process in recent years has seemingly sharpened, leading to suggestions for change
in the Senate's voting rules on nominations. The political nature of the process in
turn permits disputes to become contentious in ways, and through means, that could
threaten the structures or culture ofjudicial independence in the Article III courts.
For these reasons, the tenure rules assume special importance in safeguarding
judicial independence. The long tradition that Article III judges are not removed
from office based on disagreement with their legal decisions has been an important
part of the package. A number of scholars have recently argued that the terms of
Supreme Court Justices should be limited to eighteen years. Comparative experi-
ences suggest that serious levels of judicial independence can be attained through
long, nonrenewable terms. But such a change in an established and ongoing system,
with an existing package of institutional features operating in a specific constitu-
tional culture, would have ramifications elsewhere-for the confirmation process,
for the internal dynamics of the Court, for its relationship to the lower federal
courts, and possibly for the stability of law-that require careful and cautious
consideration. For example, if Supreme Court confirmations were to happen every
two years, should the package include changes in selection procedure, perhaps to
require a supermajority vote to confirm?
Moreover the Article III federal courts, headed by the Supreme Court, have
functioned as the judicial anchors for the supremacy of federal law in a large
country whose state and federal courts use many different selection systems (includ-
ing elections for fairly short terms in some of the state courts) and which has
managed to sustain a serious commitment to the rule of law. The federal courts are,
in a sense, part of an overall package that is the U.S. court system, whose
commitment to the rule of law under the Constitution has accommodated the states'
freedom to adopt different approaches to judicial selection and tenure, perhaps in
part by assuring the strong independence of the Article llfederal judiciary through
salary and tenure provisions. Careful thought is thus required before changing one
of the pillars of this ongoing system.
* Professor of Law, Georgetown University.  2007, Vicki C. Jackson. I am grateful to Sue Bloch,
Michael Gerhardt, Jim Pfander, Judith Resnik, Bob Taylor, and Mark Tushnet for helpful comments on
earlier drafts. My Research Assistants, Kate Couch, Andy Eberle, and Joe Gallagher, deserve thanks for
their cheerful and careful work. Responsibility for any errors is mine alone. This Essay was written as a
background paper for and presented at Fair and Independent Courts: A Conference on the State of the
Judiciary, September 2006, and the research on which it is based was completed in the summer of

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