Becker and Posner discussed this on their blog last month (here and here). The comment threads had some interesting ideas as well.

I've got an easier solution.

Take abortion out of the courts by having Congress pass a law explicitly legalizing it. That way, the 'debate' over the issue would move to Congress, which is where it belongs.

Did you just say getting Congress to pass a law making abortion legal would be easy?

The effort to pass a constitutional amendment may not be likely, but it has better chances than Congress explicitly legalizing abortion. Have you seen our Congress lately?

Did you just say getting Congress to pass a law making abortion legal would be easy?

No. I think it would be preferrable to what we have now, which is federal legislation being written by proxies in the judicial branch.

That's not how things are supposed to work.

You can't discuss the current controversy over judicial nominations (as opposed to, say, controversies from 40 years ago raised as debating points) without considering the organized interest groups that live off them: the ones on the left because they favor legislating from the bench, the ones on the right because attacking activist liberal judges is a proven boon to their fundraising.

More accurately, you can, in the same way it is possible to discuss agriculture without ever mentioning the air, water or soil.

Why not have congress pass a law explicitly
making abortion ILLEGAL? I would think
that with the current congressional make
up that would be easier.

I agree with term limits for judges for the reasons mentioned and a few more of my own, but suggest the following alternative:

"All federal judicial appointments shall be for a term of twelve years. No person may be reappointed to the same office. No person may serve as a federal judicial officer for a period of more than twenty years."

I.e., each appointment is for twelve years. Judges may be given different appointments to different positions, i.e., a district court judge may be given a new appointment as a circuit court of appeals judge, or an appellate judge may be given a new appointment to the Supreme Court. Some upward mobility is permitted.

But the total judicial service of any one person in however many judicial offices he/she is appointed to is limited to twenty years.

One of my additional reasons for federal judicial term limits is the lack of external discipline for misconduct. Right now it is impeachment or nothing. There is no federal equivalent of the California Commission on Judicial Performance.

This also means that the public and Congress are deprived of any opportunity for inspection of misconduct by federal judges. There are no external moral checks on judicial misconduct. Each judge is a little god subject only to the disapproval of their peers.

I would therefore also add a phrase to the proposed amendment:

"Congress may enact legislation to oversee the conduct of judicial officers, which shall include the power of subpena but not termination from office."

This would permit Congressional oversight, i.e., break down separation of powers in a limited manner, while preserving judicial independence. The latter would be limited by term limits.

I think that 15-20 year appointments for appellate and Supreme Court judges would be very good. I'm an elderly academic, now pushing 68; I see that one of the big problems associated with very long tenure academic appointments is that many of us oldsters are too caught up with fighting the battles of the past, even without the issue of politics. I don't say that the old farts must retire but they must not retain supreme power. Retired judges can function in many useful capacities, including doing honest redistricting, but people in their 80s, liberal or democrat, should not sit on the Supreme Court.

To say that judges must not legislate is hogwash. Words are inherently ambiguous. The Courts in theory protect minority rights. Prudent judges would simply refuse to review gay marriage cases- a panel of retired judges could perhaps come up with some useful suggestions for legislators about many tough issues. How can we ever take control of global climate change with the present "Congressional climate?". How could a sane person vote for more nuclear power plants when we have no disposal mechanisms and the government won’t plan realistically for disposal of those toxic fuel rods? Why should Nevada accept the nuclear excrement of the other 49 states?

Freudian slip - I intended to say liberal or conservative. Wow.

At the Volokh Conspiracy, Randy Barnett and Orin Kerr also discussed the issue briefly and were generally in favor of the idea. They'd also opened comments on both posts.

I don't recall if Eugene Volokh weighed in.

How can we ever take control of global climate change with the present "Congressional climate?". How could a sane person vote for more nuclear power plants when we have no disposal mechanisms and the government won’t plan realistically for disposal of those toxic fuel rods? Why should Nevada accept the nuclear excrement of the other 49 states?

Why should Judges be the ones making these decisions? It's not like they'll have to deal with a pissed-off electorate if they make unpopular decisions, which is the point of having elections. Officials are supposed to be accountable to the electorate for their performance in office, and judges aren't.