The time has come to reevaluate the wisdom of lifetime appointments for judges, professors and priests. In principle, a lifetime appointment can extricate individuals that hold these positions from the trappings of partisanship. 

Judges should be free to administer justice dispassionately without concern for how their decisions resonate with the general public. Alexander Hamilton argued in Federalist 78 that job security is required to induce qualified attorneys to give up their lucrative law practices in order to serve on the bench. He further argued that this job security was necessary, in part, because the judiciary is the weakest branch of the government (having power over neither the purse nor the sword) and yet must serve as an ever-vigilant check on the power of the other two.

In the same vein, the argument goes, professors should be able to conduct objective research that is not subject to the vagaries of public opinion. The autonomy to push forth the frontiers of knowledge must be sacrosanct. The priesthood is a lifelong commitment to the canons of Catholicism that requires great personal sacrifice. It is not a skill set that is easily transferred to a different vocation.   

 But there is also a dark side to lifetime appointments. Individuals may physically be able to remain in their respective positions despite a cognitive decline that questions the very wisdom of their doing so. Individuals that cannot be (easily) terminated from their positions may take certain liberties that they would not be inclined to take otherwise. This is known as a problem of moral hazard. The seminal question concerns whether lifetime appointments continue to pass the cost-benefit test in this day and age and if not, what should replace them? 

Physical versus Cognitive Decline

In 1787, the year the U.S. Constitution was drafted, the average life expectancy of a white male in the United States was 38 years. This compares with a combined life expectancy today of approximately 80 years. This is significant because in the early days of the republic, an individual would typically succumb to physical infirmities long before their cognitive abilities suffered a precipitous decline. In other words, judges usually died before “they lost it.” This may not be the case today as the recent experience with the United States Supreme Court clearly attests. 

Justice Ruth Bader Ginsburg has suffered several serious health issues that have resulted in her being absent for extended periods of time from court deliberations dealing with matters of critical national importance. This prompts three questions. First, has someone such as Justice Ginsburg who remains on the court despite these infirmities effectively demonstrated that they no longer possess the good judgment to remain on the court?

 Second, if Justice Ginsburg remains on the court in the hope that a Democrat president will be able to choose her successor has she violated the spirit if not the letter of the separation of powers? Third, should there be a default presumption that someone well into their ninth decade possesses the mental acuity to adjudicate some of the most challenging legal issues of the day? 

All of these questions are juxtaposed against the text of Article III, Section 1 of the U.S. Constitution that does not specify lifetime appointments per se, merely that “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . .” The framers may have believed that anyone possessing the good sense and judgement to be appointed to the bench would exercise the requisite acumen to resign when physical or mental infirmities precluded them from discharging their duties in a competent manner.    

Canada and the UK also have “lifetime” appointments for Supreme Court Justices, but lifetime in these countries is defined as the age of 75 years and 70 years (if appointed after 1995), respectively. The presumption is that someone over this age possesses neither the physical stamina nor the mental acuity to serve on the high court. Like any other hard and fast rule, there will be exceptions. Some justices on the high court will have surrendered their ability to serve ably long before they reach the age of 75, while others may be able to serve with distinction well into their 80s.

Similar issues arise in academia. Universities may retain seasoned professors longer than they really should due to concerns about age discrimination. While these concerns are not without merit, it is necessary to recognize that students are paying exorbitant (and ever-increasing) tuition and they have a right to expect lectures that are current and on the frontiers of the discipline. 

Unlike a fine wine, a professor’s yellowing lecture notes do not improve with age. There are certainly professors in their fifth or sixth decade in the classroom that remain inspirational teachers and cutting-edge researchers, but this is the exception. The stories about departmental secretaries having to roust aged professors asleep in their offices to ensure that they actually show up for their classes are not apocryphal. 

Incentive Problems  

A moral hazard (“hidden action”) is an incentive problem that arises when individuals are protected from the adverse consequences of their actions and therefore fail to exert the requisite effort to minimize the likelihood of these consequences. To wit, fully insuring savings and loan institutions against financial losses led investment managers to take on excessive risk that required a government bailout that taxpayers had to pay for. Insurance companies employ deductibles to increase the likelihood that the drivers they insure exercise the requisite due diligence (which cannot be observed directly) in avoiding accidents which reduces claims and financial outlays.  

In similar fashion, because professors and the clergy enjoy a “protected” status within their respective institutions, tenure for academics and lifetime appointments for priests, their behavior is not disciplined by a credible threat of termination or laicization. This protected status encourages “bad behavior” because the risk of punishment is deemed negligible. 

With the tacit approval of university administrators, professors invoke tenure to protect their right to advance their political and social views while denying students the opportunity to develop their own perspectives. Would we observe the same intolerance of alternative viewpoints and restrictions on free speech on college campuses if professors did not have tenure? 

Tenure has afforded professors the opportunity to partake in conduct that would be met with harsh rebuke outside the ivory-covered walls of academia. What were not so long-ago respected institutions of objective, critical discourse has devolved into thought-training camps for progressive propaganda. Lest we forget, it was those who chose not to march in lockstep that Robert Frost hailed in The Road Not Taken.  

Serious consideration should be given to eliminating tenure in favor of three-year or five-year renewable contracts. This may require supplemental compensation for select faculty due to risk-return tradeoffs, but these costs will be more than offset by the separation of unproductive faculty and the influx of new ideas produced by those that replace them. 

The Catholic Church has been racked by a long-lived, sexual-abuse scandal that has weakened its foundations, perhaps irreparably, driven away countless parishioners and forced it to seek bankruptcy protection. The actions (inactions) of the Vatican in response to this crisis will be scrutinized for decades to come as the cover-up only compounded the sins of the original crimes.  

Would the church have experienced a scandal of this breadth and depth if the offending priests perceived there was a credible threat that they would be terminated as a result of their deviant behavior? Did lifetime appointments engender a problem of adverse selection in attracting a disproportionate number of the “wrong type” of individuals to the priesthood? 

While reasoned opinions will differ on the answers to these questions, there can be no meaningful debate that there are serious problems that need to be addressed.       

♦♦♦

The term “lifetime appointment” should be redefined to mean something other than “until death.” Seventy-five years of age may constitute a reasonable starting point that equitably balances the interests of all parties. These age benchmarks could also be indexed to average life expectancy, much as entitlement payments are indexed for cost-of-living adjustments. 

Biology counsels that a sizable proportion of the population is likely to experience significant cognitive decline long before their physical demise. Moral hazard explains why individuals “protected” from the adverse consequences of their actions will fail to exert the requisite effort to avoid those consequences. The time has come to make the necessary adjustments to our educational, legal and religious institutions. The weight of the evidence is that lifetime appointments no longer pass the cost-benefit test, if they ever did.    

Dr. Dennis Weisman is Professor of Economics Emeritus at Kansas State University. He has published more than 120 articles, books, and book chapters. His research has been cited by the U.S. Supreme Court and the U.S. Court of Appeals for the D.C. Circuit.