Issue Position: Fundamental Reform of the Judiciary

Issue Position

Ending Life-time Appointments for the Federal Judiciary

Reforming the judiciary is another essential part of overhauling Washington. The courts and the activist judges that inhabit them too often ignore the Constitution and legislate from the bench, distorting the fundamental principles of this country.

Activist judges take away from the people the ability to live their lives according to their own consciences -- making critical decisions about life, death, religion, guns, political free speech, immigration and countless other aspects of our lives -- often based on the whim of one justice in a 5-4 opinion. Only from the United States Supreme Court can we get -- on the same day -- one opinion upholding our right in Texas to display the Ten Commandments on the Capitol grounds, and another opinion denying the right of Kentuckians to display the Ten Commandments in a courthouse.

The simple truth is that the best solution is to nominate only Judges who respect the Constitution and the law as given to them -- and who will not make law from the bench. But like everything in Washington, we need to take a look at a few structural reforms to rein in those who seem to have forgotten there is a limit to their power.

One such reform would be to end lifetime appointments to the federal judiciary, including prospectively to the Supreme Court. According to one analysis -- the average tenure of a Supreme Court Justice has risen from 14.9 years between 1789 and 1970 to over 26 years for those who retired between 1970 and 2005.

More, vacancies are occurring far less frequently, exemplified best by the 11 year stretch from 1994 to 2005 in which there was not a single vacancy.

Some of this is explained in part by an increase in life expectancy, but it is hardly healthy for a freedom-loving people to be lorded over for more than 26 years by justices who have assumed ever-increasing amounts of power to decide how we live. In addition, the nominations process has become increasingly politicized -- with justices making retirement decisions based on the timing of which political party controls the White House.

There are a number of proposals which might be considered -- one would be a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year.24 This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices. A similar model could also be applied to appellate and district courts.

In addition, there are some reforms to the Judiciary that would not require an amendment to the Constitution. Congress has the authority under the Constitution to establish the jurisdiction of the Court. If our courts insist on refusing to adhere to the Constitution and the law on important issues -- be it school prayer, life, the death penalty or anything else of importance to the people -- then Congress should take their jurisdiction away. As president, Governor Perry would work with Congress to establish the necessary changes to the judicial system.

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