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For decades, a debate over lifetime appointments in the federal judiciary have pitted those who value freedom from political influence against those who see a need for accountability. The former want to continue the tradition, and the latter want either term limits, retention elections, or a combination of both, as many states have in place now. No serious effort has been made to propose such a system, but perhaps an “exit interview” by the New York Times’ Adam Liptak of retired appellate jurist Richard Posner will prompt one. And it should, as Posner inadvertently makes the best possible case for it:
He is 78 and had been a judge since 1981, when President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago. Before that, he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics. In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.
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That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.
That’s hardly a new phenomenon, although certainly one that routinely frustrates conservatives. It’s often derisively called “growing in office,” and is one reason why conservatives have pressed Republican presidents to nominate solid originalists rather than moderates to the federal bench. Conservatives have lodged similar complaints about Sandra Day O’Connor, Anthony Kennedy, and especially David Souter, among many others.
Those complaints do sometimes form the basis of calls for term limits on the federal bench, but are widely considered as sour grapes. What Posner admits next, however, has less to do with outcomes and more about corrupting the entire point of self-governance and the rule of...
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