This floating legal treatise will not offer yet another pronouncement on the 47 months imposed on Paul Manafort for crimes that the sentencing guidelines prescribe a term of 19 to 24 years. Nor the district court judge’s comment that Manafort otherwise had led a “blameless life.”
This is about our second reaction. Once again, we are experiencing a life sentence that Article III, section 1 imposes on America, by inferentially granting life tenure to all constitutionally contemplated federal judges. That includes 78-year old United States District Judge T.S. Ellis III, who sitting in the “Rocket Docket” Eastern District of Virginia sentenced and pronounced on Manafort. Judge T.S. E. III is a daring and arrogant jurist whose parents apparently dared “to eat a peach.”
Ellis’ right to life tenure is merely inferential, because all the Big C says is that judges “shall hold their Offices during good Behaviour.” And the thing is that the final say on whether that vague wording means that we will have to put up with “I am the law” Ellis when he turns 88, 98 or 108 – well the answer rests with federal judges. That is because a particularly brilliant one opined in 1803 that “it is emphatically the province and duty of the judicial department to say what the law is.”
Though HL has had the exhilarating experience of litigating a big case in the Rocket Docket from complaint to trial in just 10 months, that would have taken three to four years elsewhere, we haven’t appeared before Judge Ellis. But like every federal litigator of an age, HL has had a least one judge that evokes doubt about the continuing wisdom of life tenure. There are bad, abusive and conceited people in every line of work and some of those (education springs to mind) shield them with some degree of tenure. But life tenure in this particularly crucial, last word profession feels “excessive, cruel and unusual” in the words of another provision of Big C. It recommends employment of yet a third constitutional provision, Article V, dealing with amendment.
Assuming the framers intended that judges have life tenure, as I do, they might not be surprised that life expectancy of the typical federal judicial appointee has more than tripled since 1789. HL has argued several appeals in the Second Circuit with a panel member asleep before, throughout and after both sides argued. In another case, HL drew a 100-year old district court judge in a massive action that seven years later culminated in the largest antitrust settlement in history. As determined by the judge who replaced the centurion after he died.
The point is not that any age is presumptively too old. Among, if not, the best now sitting in the federal courts is 97-year old Jack Weinstein of New York’s Eastern District. But for those who run out of steam, or demonstrate while still relatively young, that they are not good at the job, a fixed term of say 14 years with the possibility of reappointment is an amendment whose time has come. Its necessity will become increasingly apparent and urgent as life span continues increasing, as do the number of unqualified shitheads appointed by another one in the Whitehouse.