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Congress Should Respect Independence, Shorten Supreme Court Service

Justices' longer life spans increase the court's power and embitter debate on appointments

Congressmen should respect the duty of judges to decide cases independently, but also enact nonpartisan reforms to shorten the service of Supreme Court justices, says a DukeUniversity authority on the federal judiciary. Earlier this week, House Majority Leader Tom DeLay criticized the work of Supreme Court Justice Anthony Kennedy. DeLay also has called repeatedly for the House to find a way to hold the federal judiciary accountable for its decisions.

"It is entirely inappropriate for any member of Congress to threaten a judge with legal consequences for making a decision with which the congressman disagrees," said Paul Carrington, a Duke law professor who co-authored the proposed Supreme Court Renewal Act.

The proposed act would require the appointment of a new justice in every two-year Congressional term, replacing all of the court's nine justices in 18 years. Each justice would serve for a maximum of 18 years.

"Supreme Court justices hold office too long now simply because life spans are much longer than when the Constitution was written. This has reduced the justices' accountability, increased the court's power and embittered the partisan battles over increasingly rare appointments.

"Eighteen years of regular service on the Supreme Court is ample to guarantee judicial independence from the political branches, but would eliminate the problem of the same persons holding enormous political power for decades on end," he said.

Carrington said Congress should continue to respect the principle of judicial independence established in 1805. "Justice Samuel Chase was not only a member of a political party that was out of power, he was also a very bad judge who had made some very inappropriate decisions," Carrington said. "But it was concluded that he should not be removed for partisan reasons. For two centuries, Congress has adhered to that wise principle of self-restraint."

Congress has a responsibility for assuring that the Court performs its constitutional duty and stays within applicable constitutional bounds, Carrington said. "However, the intimidation of a judge is no way to perform that responsibility," Carrington said. "It is the intimidating congressman who should be threatened with the loss of his office."

While verbal assaults on judges for their decisions or for their signed opinions are within the First Amendment rights of congressmen, "it remains for the people to judge whether such assaults are warranted," Carrington said.