Judicial independence is necessary to assure the rule of law and protection of rights; accountability in some form is necessary for legitimate judicial review in a democracy.1 Rules about selection, tenure, and removal of judges are important parts of the “package” of provisions, practices, and institutional designs that influence the degree and shape of judicial independence and public accountability. This package includes legal, institutional, political, psychological, sociological, and cultural elements that affect judicial independence in complex ways. These elements are often interdependent; a change in one may create, or call for, changes in others. This essay focuses on the selection and tenure rules that are parts of the package of institutional designs protecting the independence of Article III federal judges, in light of recent controversies over the nomination process and proposals for “term limits” for Supreme Court justices.
The U.S. Supreme Court justices, and the judges who serve in the federal district courts and circuit courts of appeals, are all Article III judges, appointed and holding office pursuant to Article III of the Constitution.2 Nominated by the president and confirmed by the Senate, Article III judges hold office “during good Behaviour” and their salary cannot be reduced once in office. On conventional understandings, they can be removed from office only by impeachment in the House and conviction in the Senate, by a two-thirds vote, for “Treason, Bribery, or other high Crimes and Misdemeanors.” Article III judges are not the only federally appointed judges, but function as part of a much larger system of judging and justice that includes non-Article III federal judges and the state-court judges. . . .
- 1This essay is drawn from a longer one, “Packages of Judicial Independence: The Selection and Tenure of Article III Judges,” which first appeared in The Georgetown Law Journal 95 (4) (2007).
- 2See U.S. Const., article III, providing for a Supreme Court, and for “inferior” or lower federal courts to be established by Congress.