Oh good. A right-wing pervert with a drinking problem on the High Court. Goodbye healthy nature, hello environmental destruction.
A piece on why we need to impose term limits on the Supreme Court justices that ran on Pennlive.com today (actually, this is the original, longer version; my editor cut it by 250 words).
By Bob Quarteroni
“Presidents come and go, but the Supreme Court goes on forever.” President William Howard Taft
And that’s exactly the problem.
While the other branches of government – the executive and legislative – have time limits on office holders, who have to convince voters of their worth over and over again to stay in office, the judicial, most notably the Supreme Court, faces no such scrutiny.
But if the recent madhouse surrounding Brett Kavanaugh’s coronation to the High Court has proven anything, it’s that the High Court justices are far too frail, damaged and partisan humans to be given a lifetime get-out-of-jail pass.
Ostensibly, one of the reasons the High Court judges are given lifetime appointments is that it protects them from the political ebb and flow of regular election cycles, allowing them to be apolitical, “above it all,” as is often said of the High Court, though less and less accurately.
But one only had to listen to Kavanaugh’s red-faced excoriation of what he called Democratic opposition to his nomination based on “revenge on behalf of the Clintons…. This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump.”
Yep, pretty darn apolitical there Brett.
The erroneous philosophical underpinnings of the forever card can be placed at the feet of founding father Alexander Hamilton.
In Federalist paper No. 78, Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had “no influence over either the sword or the purse…It may truly be said to have neither FORCE nor WILL.”
Yeah, try telling that to any woman who wants to get an abortion next year and can’t and see if she thinks force and will are missing.
So it’s pretty clear this isn’t working the way the Founding Fathers envisioned, even in their worst nightmares.
With life expectancies going through the roof, and our politics beyond partisan, into simple tribal warfare, it makes no sense to pretend the system is not being gamed.
No more glaring example can be found that Mitch McConnell’s refusal to even consider Merrick Garland to the Supreme Court for almost a year, but having no trouble ramming Kavanaugh through after a feckless dog-and-pony FBI investigation and Republican see-no-evilism.
So now we have all four branches of the federal government in Republican hands, because a 5-4 GOP Supreme Court is in play and, thanks to the endless appointment scam, may be so for decades.
Actually, the Supremes don’t have lifetime appointment.
Section 1 of Article III of the Constitution, which founded the Supreme Court, reads: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour….”
Meaning, I would imagine, the Founding Fathers never envisioned anything like the “Long Dong Silver” episode during the Clarence Thomas confirmation hearings or just about every aspect of the current Kavanaugh madhouse.
So, impeachment might be a possibility if the Democrats retake the house.
But that’s only a band aid. What’s really needed are term limits on Justices, bringing them down from the clouds and into step with their federal government counterparts.
I’m not the only one thinking this way.
A 2015 poll conducted by Reuters/Ipsos found that 66 percent of Americans support Supreme Court term limits, and nearly half believe justices should be elected.
And the cybersphere is dense with legal pundits and scholars proposing various plans, with different term lengths and provisions but all with one overriding theme: Putting an end to forever stays on the Supreme Court bench.
Writing in the Hill, Alan Morrison, constitutional law professor at George Washington, wrote, “It is almost certainly impossible to take politics out of the process entirely, but we can reduce the heat if we lower the stakes by regularizing appointments and limiting the terms of the justices to 18 years. The only way we can be sure it will be done and not overturned when there is a shift in power is to amend the Constitution.”
Artemus Ward, author of “Deciding to Leave: The Politics of Retirement from the Supreme Court,” says that scholarly consensus “suggests an alternative of staggered, 18-year terms, allowing each president to nominate two justices every four years. Under this plan, each president would have the opportunity to leave his or her mark on the court, promoting democracy,” according to an article in Quora.
Of course, the 800-pound gorilla in black robes in this is the difficulty of getting a constitutional amendment to Article 3. It would be a long, hard slog.
But others have considered workarounds to limit tenure without amending the Constitution.
Writing for the Washington Post back in 2005, lawyer Robert Bauer suggested Congress and the president simply ask Supreme Court nominees for an informal commitment to leave the bench after a sensible period of time. “Any justice who hopes that with the passage of time such an exchange would be forgotten would likely be disappointed,” Bauer wrote. “Over time, a custom or expectation would develop.”
As John Farrell, writing in U.S. News & World Report put it, “After all, the Constitution says you can stay for life. It doesn’t say you have to.”
So there are possibilities, and I would suggest we start seriously looking into them yesterday, since there’s a very good chance Trump will be able to get one or even two more justices on the bench in the next two years, rendering an unbreakable GOP court for decades to come.
As it stands now, as we’ve all just witnessed in hideous detail, the impartial Supreme Court of legend – and dreams – is gone, probably forever.
If we want to have a chance of resurrecting even a modicum of fairness and responsibility we’d better do something, and not just wring our hands and bemoan our fate.
And if we’re lucky, we may even get support from the unlikeliest of places.
In 1983, before he joined the Supreme Court, Chief Justice John Roberts suggested setting a term of “say, 15 years (that) would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence,” according to a 2005 New York Times story.