In January, a constitutional amendment was introduced in the Massachusetts House of Representatives that would shorten terms for state judges, allowing their appointment to be reevaluated periodically. The Boston Globe posted a piece on Friday detailing the arguments for and against the amendment, asking its readers to answer a survey about what they think should be done.
We read each opinion, discussed and concluded that neither plan successfully addresses the problem they each claim to: politics affecting the judiciary.
At the moment, state judges are appointed for life, or until mandatory retirement at 70, by the governor and approved by their council. The amendment proposed would require that state judges be reevaluated by the council every seven years and gain approval by the Governor’s Council to extend their term for another seven years.
Lifelong terms are an attempt to depoliticize judgeships by taking away incentives to sway decision based on the hopes of reappointment. But they are counterproductive in that they allow governors and presidents, who are explicitly partisan, to influence decisions long after they are out of office.
The amendment being proposed in Massachusetts, however, does not address this imbalance in checks on power, because of the reevaluations’ reliance on the Governor’s Council.
Giving all of the reevaluation power to the governor and his council means each governor can simply undo the appointments of the next. After seven years, there could very well be a different governor with a potentially conflicting agenda from the governor that appointed the sitting judges.
In the same way a governor should not have the power to appoint judges that will affect decisions for the indefinite future, they should not be permitted to entirely replace the state judiciary every few years.
Although judgeships are inherently political, as they come from an appointment by a highly politicized office, whether that be governors or presidents, their job description is to objectively evaluate the law.
Each of the solutions currently in debate, however, incentivize judges to make decisions based on politics over legality.
Candidates for lifelong positions are forced to prove to the current governor that they will implement decisions that reflect the political ideologies of the appointer for years to come. Judges faced with reevaluation by the Governor’s Council would be similarly pressured to make decisions that please the body controlling their fate.
The state would be best served by developing a third option that lowers the length of judges’ terms, but places less emphasis on the governor’s office as the sole kingmaker. An extension of the federal system for appointing judges, which requires approval from the Senate, may benefit the reevaluation system by restoring the balance of power that is currently missing from the state judiciary.
Judicial institutions are meant to be independent from politics, but are influenced by ideologies nonetheless through the nature of their appointments. Lifelong terms hinder objective judgeships, but so would the continual upheaval of sitting judges by governors and their councils.
