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May 1, 2017

Judicial Term Limits
The notion of term limits for appellate judges is not so radical and should be considered and debated, instead of a knee-jerk reaction in opposition. Currently, there is a petition circulating in Colorado to amend that state’s constitution to adopt term limits for appellate judges. If adopted in Florida, Florida will be the first or second state to have term limits for appellate judges.

The argument of institutional memory is fallacious. What about new appellate judges?
Presumably they are experienced attorneys and know the law. They will just research cases like any appellate attorney. It is called precedent. However, precedent has been harmed in recent decades by per curiam decisions, a lazy appellate court’s way of saying, “I would rather not take the time to write a real opinion.”

The current appellate retention system is a pro forma ratification of appellate court judges. Some judges who stay too long on the appellate bench believe that they are entitled to the position, and many grow stale intellectually after many years. New blood may give the appellate judiciary new perspectives in interpreting the law versus judicial legislating.

Two terms of six years is a reasonable length of time for a lawyer to sit as an appellate court judge. I am against the same rule for trial judges because the people elect them and can purge a judge who acts inconsistent with the public good. The public does not have a clue about who is an appellate court judge and how they have ruled for or against the public good.

Richard N. Friedman
Beverly Hills, California

Judicial Decisionmaking
The Seventh Circuit in Hively v. Ivy Tech Cmty. College of Indiana, No. 15-1720, 2017 U.S. App. LEXIS 5839 (7th Cir. April 4, 2017), now tells us that the Civil Rights Act of 1964 prohibits employment discrimination on the basis of “sexual orientation.” What is interesting about the decision is not its inevitability in today’s social climate, but the differing views on judicial decisionmaking espoused by Judge Posner in his concurrence versus Judge Sykes in his dissent.

Judge Posner closes his discussion of activist decisionmaking, readily acknowledging that Hively was not what the legislators of the act intended, by stating: “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not.” 2017 U.S. App. LEXIS 5839, at *42-43 (emphasis added).

By contrast, Judge Sykes says: “Respect for the constraints imposed on the judiciary by a system or written law must begin with fidelity to the traditional first principle of statutory interpretation: When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory language as a reasonable person would have understood it at the time of enactment. We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.” Id. at *50.

The difference could not be more stark. Is the judiciary “freed up” from legislative intent to simply take on the mores of the times and make new law accordingly, as Judge Posner advocates, or is the judiciary supposed to ascertain what the legislative intent was and enforce that? Judge Posner allows for judicial law changes if there is simply some “toehold” in the congressional language that can be “morphed” into whatever judges conclude the current moral temperature calls for. This extravagance is especially telling here given that “sexual orientation” is just a coined phrase that stands for LGBTQs. What if the coined phrase had been “heartfelt desires” instead? Would Judge Posner still have allowed for preclusion of discrimination based on homosexual or lesbian conduct under the act?

Thomas F. Harkins, Jr.
Ft. Worth, Texas

[Revised: 05-18-2018]