Co-Equal Branches?

Member Group : Lincoln Institute

The judicial branch of government has been in the news a lot lately for matters unrelated to actual litigation. The conviction of a sitting state Supreme Court Justice on felony charges for using state employees to conduct campaign activities has generated well-deserved headlines. And, some of the judges have decided to contest the validity of a requirement that they retire at age 70.

Highlighting the 70-year-old mandatory retirement issue is the fact that the Chief Justice of the Pennsylvania Supreme Court, Ronald Castille, will turn 70 just a year after he begins his next ten-year term, assuming he is retained by voters this November. Judges at other levels, approaching mandatory retirement, have initiated suit essentially claiming age discrimination.

One of their arguments is that elected officials in the executive and legislative branches are not subjected to such a mandatory retirement age. This is a rather disingenuous argument coming from a branch of government that otherwise revels in special treatment, supposedly because they are fair and impartial. For example, judges serve ten year terms. Their counterparts in the executive and legislative branches serve four or two year terms. Theoretically this isolates the judiciary from the taint of politics, although few can assert that with a straight face. The judiciary further benefits from running in a "yes" or "no" retention election rather than a partisan re-election campaign. Thus, barring exceedingly rare and unusual circumstances election to a judicial position has become essentially a life-time job.

So for the judges to argue that mandatory retirement is a hardship visited upon them and nobody else in government rings rather hollow. But, those of us who believe the three branches should be co-equal – and who feel the judiciary is accorded unmerited special treatment – this is an opportunity to level the playing field. Let us go ahead and eliminate the mandatory retirement requirement. Let judges serve until whatever age the voters turn them from office. But, only on the condition that all members of the judiciary – from Magisterial District Judge to Supreme Court Justice – run for four year terms and then stand for re-election just like the executive and legislative branches. That would be equality.

A hue and cry would go up that would politicize the judiciary and taint the judicial process. The dirty little secret is that the judiciary is as political as the other two branches of government, it is just their politics are hidden behind a cloak of false pretense. As for tainting the judicial process the conviction of a sitting Supreme Court Justice, the recent "kids for cash" scandal in Luzerne County, and the antics of the Philadelphia Traffic Court prove that judges are as susceptive to corruption as are members of the other branches of government. Regrettably, no branch has a monopoly on bad actors.

There are those who argue for the exact opposite course: merit selection of judges. The weakness of that argument is that merit selection depends on the integrity of those doing the selecting. All merit selection would do is take the politics out of the hands of We the People and put it into the hands of a select few politicians – politicians more easily controlled by the judicial and legal elite. A quick glance at the prison roster shows even more legislators than judges currently sitting behind bars. Do we really want these people controlling the selection and confirmation of our judges?

Government works best when it is closest to the people. By reducing judicial terms to four years, and making judges stand for re-election rather than for retention, we vest in voters much more control over that branch of government. It is time we stopped pretending the judiciary is something special, more pristine, or more important than the other two branches of government. It is not. Yes, the judiciary is vital to the functioning of our system of checks and balances, but it is not any more vital that the governor or the legislature. The time has come for us to put the "equal" back in ‘co-equal."

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal. His e-mail address is [email protected].)

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