It has been a while since I’ve had time to blog about the judicial confirmation process and filibusters (something I spent a great deal of time on last spring). But it is worth noting that someone as moderate and middle-of-the-road as Norm Ornstein is now questioning whether we want to abolish life tenure for federal judges. In this Roll Call oped (paid subscription required), Ornstein asks if the “downward spiral” in judicial nominations (he must have been reading Larry Solum’s blog) means taking radical action like ending life tenure.
Ornstein writes:

It is time to reconsider Article III, Section I of the Constitution, which gives federal judges lifetime appointments. I know, I know, this is sacred territory. And the Framers both carefully considered judicial tenure and eloquently defended the term of good behavior for judges in Federalist 78 and a refusal to impose age limits for judges in Federalist 79. Permanent tenure was a bulwark against legislative and executive encroachment and improper influence and was an incentive to get the most fit and skilled individuals to leave lucrative practices to join the judiciary.
But lifetime tenure also skews the impact of each appointment, giving a president the temptation to pick young ideologues who will leverage the presidency for many decades thereafter. And lifetime tenure increases the stakes of each appointment, making tough battles tougher, encouraging the use of more hardball tactics and giving opposition parties more reasons to block as many appointments of a president as they can, to leave these lifetime plums open for a president of their own.
The arguments for lifetime tenure are not as powerful as they were back then. Nowadays, given that federal judicial pay is about the same as that of a second-year associate at a major law firm, lifetime tenure as a judge is not quite the same lure as it was in the 1780s. And while lifetime tenure does insulate judges from pressure from Congress, the president, attorney general or other officials, a long-term fixed appointment could easily provide comparable insulation.
My first cut at this would be to leave the Supreme Court as it is, with lifetime appointments; there are few enough appointments, and the system can easily handle the infrequent, knock-down, drag-out battles. But I would recommend a 12- or 15-year appointment for lower court federal judges.
These appointments would be nonrenewable, to take away the pressure on the judges in the last year or two of their terms to shift their opinions to conform to the desires of the president or his party. For relatively young people, it would be possible to serve and then build a capital base for children and grandchildren. For older people, it could be a capstone for a career. For presidents, appointments could be made without the temptation to go young to solidify your legacy for even longer.

This is surely a cure that is worse than the disease. First, a large number of Bush’s judicial appointments are getting through. Second, the ones that are not getting through tend to be those that Democrats can credibly paint as ideologically outside the mainstream. Third, if we are worried about a politicized judiciary, shortening terms only exacerbates the problem. Indeed, a few years ago, I looked at the political science literature on judicial indepedence in writing about the intersection of the Voting Rights Act and the election of judges. It appears that the best way to insure the independence of the judiciary is to lengthen judicial terms. Ornstein’s suggestions are a step in the wrong direction.
The best way to solve the problem is a political solution: eventually, the president will choose to nominate more moderate nominees or Democrats (perhaps after losing more seats in the next election) will cave in on more of the ideologically extreme candidates chosen by the President. The problem is not as bad as Ornstein makes it appear.
UPDATE: Larry Solum responds here.