Conservatives defend life tenure for federal judges because it’s in the Constitution.
This week in terrible analogies: Tom Nichols in the Atlantic complains that it’s “hypocritical” for conservatives to criticize academic tenure while defending life tenure for Supreme Court justices. Nichols misses a rather obvious point: Conservatives defend life tenure for federal judges because it’s in the Constitution. It was put there for good reasons explained at the time by Alexander Hamilton:
If . . . the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty. This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves. . . . It is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. . . . No man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. . . . That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.
The point of this independence, as Hamilton observed, was not to encourage in judges a spirit of innovative thinking or discretion: “if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body,” at which point this “would prove that there ought to be no judges distinct from that body.” In fact, “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
In short, judges have life tenure precisely so they don’t just do whatever they want. They are given a huge written rulebook to follow, and following it faithfully is their job. If anything, the move by conservative state legislatures to try to gain more control over public-university faculties and public-school teachers alike emanates from the exact same impulse: to gain more control on the part of democratically elected lawmaking bodies over what is taught in government-funded schools. That can be done in the same ways that it is done with the courts: by requiring teachers and professors to follow a specified curriculum, and by imposing more democratic control over their hiring in the first place. Or it can be done the harder way, by keeping them on a short leash. Nichols objects to this, saying that it turns professors into “dancing bears for student and administration applause.”
There are fair arguments for and against the independence of both judges and university professors, but conservatives aren’t being hypocritical in wanting the same thing, ultimately, from both when they are on the public’s payroll: fidelity to the expressed wishes of the democratic lawmakers. If academics require more discretion than judges in doing that job, the flip side is more accountability for how they exercise it. And of course, conservatives are particularly happy with Supreme Court justices such as Clarence Thomas and Samuel Alito for being faithful to their written instructions from the people.
Nichols is, of course, also working from his own reality. He claims that “the litany of Thomas’s ethical issues is far beyond anything that required poor Abe Fortas to step down from the Supreme Court in 1969.” This is ahistorical nonsense, and he could know better if he chose to inform himself. I’ve written at length on the Fortas case, which was quite egregious. Ilya Shapiro adds more damning detail:
Fortas embodied cronyism and corruption, with direct conflicts of interest involving parties with business before the high court and legal advice to a businessman who was investigated, indicted and convicted of federal felonies. He also acted as a regular adviser to a president whose administration, like every administration, was a repeat Supreme Court litigant. None of the currently serving justices have been accused of anything remotely comparable. . . .
Fortas continued advising LBJ in the White House on the drafting of executive orders, the legal implications of racial controversies and political strategy, among other matters. After Johnson appointed Fortas to the high court in 1965, the justice had a private phone line to his patron installed in his chambers. Fortas’s biographer Bruce Murphy counted 254 contacts between the justice and the president from October 1966 to December 1968.
When Chief Justice Earl Warren announced his retirement in June 1968, LBJ tapped Fortas for elevation but miscalculated the politics in that tumultuous election year. Fortas didn’t do himself any favors before the Senate Judiciary Committee, where he denied he had given legal advice to the president or had participated in policy decisions. In the words of another biographer, Laura Kalman, “He simply lied.” When Fortas told the committee he didn’t recall making personnel recommendations to the president, LBJ ordered White House staff to destroy all notes from Fortas.
If Nichols thinks this is comparable to any current justice, he’s deluded. There were more shoes to drop, as Shapiro explains:
After Wolfson was released from prison in 1970, he met Fortas and recorded the conversation. The former justice persuaded the ex-con not to release 11 pages of their correspondence, including letters about the Securities and Exchange Commission investigation and a letter in which Wolfson sought Fortas’s help in obtaining a presidential pardon. Referring to the latter, Wolfson said: “That was the only time I ever asked you for one thing. In April I wrote you a letter—of 1969. You recall? . . . I said, ‘I cannot go to prison right now; if you could do anything to get me a presidential pardon—have President Johnson call Mr. Nixon.’”
“Lou, don’t tell the press about that,” Fortas said. “Because, Lou, that would really look bad.”
The transcript of the conversation confirmed that Fortas, while a member of the high court, was heavily involved in advising Wolfson. At one point Fortas agreed to intervene directly with the SEC chairman, although apparently he didn’t follow through.