Fear of a Hereditary Federal Judiciary

I just read The New Republic's The Rise of the Hereditary Judiciary by Matt Ford. Its argument runs like this:

This is as good a time as any to talk about strategic retirements in the federal judiciary and their implications. While no judge ever declares it outright, it’s common knowledge that many judges time their retirements to ensure that their successors will be chosen by a favorable president. This is why, for example, there was a small surge in retirements when Trump took office in 2017 as conservative judges who had outlasted the Obama administration chose that moment to depart. It’s also why the first year of Biden’s presidency saw a similar, albeit small, surge from liberal judges who didn’t want Donald Trump to choose their replacements.

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Conditioning one’s retirement from the federal bench on the Senate confirmation of a particular successor seems like the logical end point of this trend. It also risks creating what can only be described as a hereditary judiciary. By “hereditary,” I don’t mean that federal judgeships are literally passing from parent to child, of course. But the trend appears to be heading toward a place where federal judges arrange circumstances so they can effectively choose their own successors.

However, I do not agree with the writer's solution:, although he presents the most logical case for expanding the Supreme Court:

There’s a way to fix this at the Supreme Court level. I’ve previously proposed that we expand the court’s size to 13 seats, with one seat for the chief justice and the other 12 seats assigned to the 12 federal circuit courts of appeal that have geographic jurisdictions. The associate justices would no longer be lifetime members of the court. Instead, when a vacancy arose for a particular seat, the next justice would be chosen at random from the judges within that seat’s respective circuit and serve an 18-year term.

What remains is the self-contained, if not incestuous, nature of the federal judiciary, which is why I prefer my argument in Constitutional Fixes #1. I would add pumping up the Court to 13. Maybe 18 years would be better than the 25 I suggested. But Mr. Ford admits his solution fails with the lower federal courts. My solution proposes limiting the time a person can serve in the federal judiciary so that judicial offices can be filled with persons from outside of that judiciary. The hope is limit the hereditary aspects developing in the federal judiciary and to bring into the federal judiciary ideas developed outside of that judiciary.

sch 7/8/22