By John March
Last week brought two examples of an institutional willingness to reconsider earlier decisions, one made after an apparently thoughtful deliberation and one made, or so it appears, in haste and under pressure. In the first case, The Jackson Laboratory announced its intention to rename the C. C. Little Conference Center. Little, the lab’s founder, was not only a distinguished geneticist but also a proponent, in the 1920s, of the eugenics movement and later a high–profile supporter of the tobacco industry. The time for both causes has clearly come and gone, and the lab’s decision needs no defending. If this is an example of cancel culture, few will take issue with it.
In the second case, College of the Atlantic rescinded an invitation to a scheduled speaker for its summer lecture series after concerns were raised by some COA alumni. The speaker, Leonard Leo, is co-chairman of the conservative Federalist Society and a summer resident of Northeast Harbor. He has been a key player in efforts to place conservatives on the federal bench and reportedly helped steer the Supreme Court nominations of John Roberts, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. He had been scheduled to introduce fellow conservative Kay James, president of the Heritage Foundation, at the COA lecture series. According to a statement by COA spokesperson Rob Levin, internal objections were raised about “his [Leo’s] values.” And because Leo was scheduled only to provide an introduction, there would have been no opportunity for audience members to challenge his “advocacy for conservative federal judges.” So goodbye, Leonard.
The decision to include Leo on the program was, in my view, ill advised, given his well–documented history of raising dark money to support his activism, and, more recently, his professional lobbying against climate change mitigation. For a college dedicated to a healthy environment, the invitation to Leo appeared to cross a line for many members of the college community. Still, the withdrawal of the invitation was not a good look for COA, making the college appear unwilling to entertain right of center voices. Future invitees will no doubt weigh this example before agreeing to speak at COA. Better, in my view, to have suffered Leo to speak for a minute or two at a virtual conference (little noted and soon forgotten) than to risk a self-inflicted wound that will potentially do more lasting harm.
But for those who genuinely believe that Leo has had a baleful influence on the federal court system, there is a better approach than merely canceling him on the most minor of public platforms. Activists seeking long-term change in public policy, and particularly in the federal judiciary, will seek to de-fang him and his fellow travelers by working to end life tenure for federal judges.
Unlike the state and county judges with whom we are more familiar, federal judges enjoy lifetime appointments and can be removed only through impeachment by the House and conviction by the Senate. Failing that, the lawyer appointed to a federal circuit court seat at age 38, as Justin Walker recently was, can expect, with luck, to still be on that seat as much as 50 years later.
Can we agree that as a matter of public policy this is wrong?
The presidents who nominate federal judges are subject to term limits, and no member of Congress may go more than six years without having to face re-election. But not so for federal judges, who for all practical purposes are not accountable to anyone. And this is what gives Leonard Leo the power he has worked so assiduously to acquire. When he succeeds in placing a fellow conservative on the bench, that appointment will last a lifetime. This is why federal judicial confirmations have become so contentious: because they cannot be undone, because there is no sunset provision when, say, an abortion opponent (or, of course, an abortion proponent) is confirmed to the Supreme Court. Justice Kavanaugh, to cite only one example, is on the court for life, and it is this fact, as much as his judicial record or his personal conduct, that inflames the debate. The stakes are simply too high with each federal nomination. Lifetime appointments are, at bottom, the reason people fight to the bitter end.
Article III of the Constitution states that federal judges “shall hold their office during good behavior,” which has been interpreted to mean “for life,” barring egregious conduct. We can lower the temperature of confirmation hearings if we can end lifetime appointments. Certainly, there will still be confirmation battles – this is America – but the losers in those battles will know that all is not lost, and the winners will understand that the pendulum can swing back in due course. It will be healthier for both sides.
John March is a 1976 graduate of College of the Atlantic. He lives in Seal Harbor.