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Rick Perry has made so many goofs and gaffes during his 15 minutes of "Not-Mitt-Romney" fame that it almost feels like kicking a man when he's down to point out that he's still making stupid, ill-considered proposals on the campaign trail.  Today's howler is his proposal to impose term limits on federal judges.  According to Business Week and several other sites, while campaigning in Iowa today"Perry said term limits for federal judges are needed because too many are legislating from the bench. He said future appointees wouldn’t receive lifetime positions under his plan."

I will leave untouched his unsupported assertion that judges are "legislating from the bench," recognizing that it is an article of faith among the conservative voters to whom he is making his appeal.  However, someone really ought to suggest to Mr. Perry that he take a moment to read the Constitution before he proposes judicial term limits.  

Article III of the Constitution states that federal judges "shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."  This provision guarantees that federal judges will be appointed for life, or for as long as they want to serve, and can be removed only by impeachment.  The founding fathers created lifetime appointments precisely because they wanted to insulate the judicial branch from political pressure so that judges would be free to do what the law, not the majority, requires.  Indeed, Article III's lifetime appointment requirement was seen by the founders as a central element of the system of checks and balances they sought to create.  It was this provision that ensured that one of the three branches would be above the political fray and immune from what the founders feared might otherwise become a nation susceptible to mob-rule.  

The requirement of lifetime appointments, like the provision that prevents Congress or the president from reducing the salaries of federal judges, protects the judicial branch and guarantees that this nation will be ruled by laws, not men.  For more on this, Mr. Perry might like to read Federalist Paper No. 78, where Alexander Hamilton explained some of the basic principles of constitutional government with which Mr. Perry is unfamiliar.

If Mr. Perry wants to accomplish something positive for the judicial branch, he would do greater service by finding a way to attract and retain well-qualified candidates for the judiciary.  He might begin by announcing a plan to raise judicial salaries to prevent the exodus of experienced judges from the federal bench.  Federal judges have not had a raise in so long that most of them now earn less than a junior associate in a large law firm, and many, many times less than a lawyer with comparable experience.  In addition to asking some of our finest legal minds to work for these entry-level wages, we also subject judicial nominees to a gantlet of investigation, mistrust, and abuse as they navigate the Congressional approval process.  Unless something is done to reverse this trend, our judicial branch-- the most important check in the system of checks and balances-- is in serious trouble.

Mr. Perry's star is fading, and before too many primaries are done, its brief flickering light will be extinguished, probably for all time.  But in the mean time someone needs to explain to conservatives that the judicial branch is in dire straits, and that in perpetuating a mythology of liberal judges legislating from the bench, they are undermining a central element of the constitutional system they claim to defend.

Originally posted to oythegoy on Tue Nov 15, 2011 at 11:57 AM PST.

Also republished by Community Spotlight.

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