I think for myself, knowing that the court will have 5 new members–a majority of members–within a decade would make a new appointment slightly less fraught. Maybe people will still go scorched-earth, but again, the regular schedule would go some ways toward elminating partisan parliamentary maneuvers.
To be honest, I don’t think any of the myriad political problems in the USA are fixable. This is due in large part to being a two party system, and political parties are notoriously shortsighted. Why would you possibly want to change the system, when you’re currently winning? Trump himself said (paraphrasing), If I had lost, I would have thought the electoral college system was bad, but I won, so now I don’t. And it will be very hard for the US to become a three or four party system because whichever party splits first will be on a losing trajectory for some time.
I don’t have a WaPo subscription, but I’m curious: does the proposal go into any details about how the terms would be implemented? Like, are we replacing Ginsburg first? or Thomas? Who’s next?
Just wondering how many hoops you have there for people to jump through…and if there is actually a reward when you finally run out of them.
What reward would you envision? This is all a theoretical exercise anyways. I’d put the odds of us actually implementing a change to impose term limits on SCOTUS justices in my lifetime at less than 1%. We’re having a discussion about the proposal. That would seem to be the “reward”.
It doesn’t. I would suggest the fairest way would be to implement it as justices retire.
Let’s say it goes into effect in 2020, to make the math easier. As justices retire, their replacements get new terms. The first one that retires gets a replacement who serves until 2038–even if they don’t retire until 2025. The replacement for the next retiree serves until 2040. The next serves until 2042, and so on. By 2038, unless something really weird happens, we’d be on the 18-year schedule. (If any justice is left on the court by then, their replacement would get a shortened term to set the schedule straight).
Also, WaPo gives a certain number of free articles per month. They track it with cookies, meaning that a ne’er-do-well could avoid the limit by opening a link in an anonymous window. But that’d be rotten.
Seriously, can we not?
Not trying to get into a partisan slapfight here, but I want to explore this attitude a bit more with you. Imagine you are Senator LHoD, and your proposals have been implemented, and it now takes 60 votes to approve a nomination, but you know that nominee will only serve for 18 years. The President of that day has nominated someone like Gorsuch, or Brett Kavanaugh, Raymond Kethledge, or Amy Coney Barrett. You think you could say, “yeah, I can vote for that person”?
Oh hell no. And that’s fine. A few things might happen:
- The president would choose instead to nominate a compromise candidate that I could live with; or
- I’d face some serious pressure in my next election for leaving the country for two years without a full court; or
- The president would face serious pressure in her next election for nominating such extremist candidates.
I similarly would expect Republicans to face calculations like this when faced with Sotomayor.
Again, this isn’t going to magically make people with different opinions come together and have the same opinions. This would instead codify a process that’s really ambiguous and unpredictable now, leaving less room for partisan parliamentary shenanigans.
It seems to me that the increasing venom in the judicial nomination process has been largely because we’ve gone from a time where the President was given significant deference on judicial nominees to a time where they are not. Scalia got approved 98-0. Ginsburg was confirmed 96-3. I don’t think a judge like either of them could even get a majority from the opposition party today. Even someone like Merrick Garland (admittedly, I don’t know much about him, but I’m told he’s actually quite moderate) couldn’t have gotten over the 60-vote threshold you’re proposing. And, as far as we can tell, it seems that your #'s 1-3 did not happen (Obama did not nominate a more consensus candidate, and neither the Senators nor the President seemed to feel much pressure in subsequent elections). Why would those things start happening once these proposals are implemented?
I assume that the new consent rule would only apply to Supreme Court justices (would the 18 year term?). I know that we pretend that this is a new and shocking development, but allowing judicial nominations to expire without a hearing or a vote (thus “rejecting” the nominee without having to reject him) has been fairly common, for a variety of partisan and non-partisan motivations.
But, my real question on the proposal is whether the term limit would discourage qualified lower court judges from joining the Supreme Court because they could camp out in the court of appeals for many years longer. For example, Ginsburg joined the D.C. Circuit in 1980. She was elevated in 1993. She’s been on the Supreme Court for 25 years. If you had told her in 1993 that she had 18 years, she might have reasonably concluded that she could accomplish more on the D.C. Circuit. Alito joined the Third Circuit in 1990. He’s been on the Supreme Court for 12 years and he’s “only” 68. I guess you would likely get older justices… which wouldn’t be terrible.
Also, I don’t understand why it would make less concerned about new appointments. Stare decisis is important. Whether the talking of the more mundane business or regulatory issues or the controversial political issues, people want some sort of predictive certainty. Sure, you can overturn a bad precedent after a couple of decades every once in a while. But if the point of this proposal is to cause the balance of the Court to shift more frequently and more rapidly, that seems to be negative outcome. Unless we take stare decisis seriously, in which case, I think you’ll still be concerned.
Is the author suggesting that ALL U.S. judges be term limited, or only Supreme Court justices? If only the Supreme Court, that means we’re asking judges from lower courts to give up lifetime appointments for the honor(?) of getting a promotion.
As for reducing partisanship in appointments, members of the House are up for re-election every two years. That doesn’t seem to have reduced partisan wrangling either in Congressional elections, or in the House itself.
And finally, a two-term President would get four picks. If that President has an ideological soulmate succeed him, that President would get at least two more picks, for a total of six justices. That means the Court would have that majority locked in for another six years, even if the country swung around to the other side.
Partisanship aside it sounds like a good idea. The current system incentivizes forgoing experience in favor of choosing justices as young as possible, and then lock them to the bench until they die or a friendly administration is in power. I don’t think that is good for our country or for the judges.
But if the justices are old at the start of the presidents first term, that could happen under the current system, except ration than locked in for 6 years, it could be locked in for 20 or more years.
If I’m understanding you correctly, I think this analysis is wrong. Raising the vote requirement to 60 votes doesn’t make individual Senators’ votes count less, it makes them count more.
The more votes it takes to do something (confirm a Justice, pass a bill, etc.), the more individual Senators have bargaining power as a potential veto. You gotta promise a lot more pork to whip up 60 votes than 50.
I don’t think that actually makes a difference. That is: I don’t think the voting public, dumb as it often is, considers there to be a big difference between these two scenarios.
Republican Senators aren’t being punished at the polls for withholding a vote on Garland, and they wouldn’t be punished if they voted him and the next 15 Obama nominees down (or whatever). The majority of their constituents are happy that Obama didn’t get to appoint a (probably pro-choice) Justice to the Supreme Court.
To the OP, I’m not sure how I feel about the proposal. I think it’s not terrible. I tend to think that stability is one of the more important aspects of a court, so longer tenure is probably better, but not the only consideration. It’s not clear to me that it significantly fixes any actual issues we have.
As long as we’re fixing the Supreme Court, I’d like to see an even-sized court and a rule that cases have to win by 2 (the latter implied by an even number, but relevant in the case of death/resignation/recusal). 5-4 decisions are problematic. If it’s that close, then call it a push, let the lower courts grapple with things until they find a better test case, and try it again in a few years.
It’s not a bad idea, but it would seem a lot simply to just put a mandatory retirement age in place. Somewhere between 75 and 80 should do the trick. The one unintended consequence might be that presidents would be tempted to select ever younger SCOTUS justices to compensate.
So suppose this is was in place right now with the 60 vote requirement too. And President Trump nominates a hard right judge but the Republicans only have a 51 vote majority and they cannot get 9 Democrats to vote with them. The Republicans then only need to delay a vote for 30 days and the nominee is approved?
Oh, that’s an interesting twist I hadn’t considered. They could just take a 30-day recess, couldn’t they?
Are we clear on what we are attempting to fix? That is, can someone state what the problem is? The OP’s link goes to the Washington Post and they always want me change my browser before I can read anything.
Fair point. I’m not sure how to fix that. IMO, the goal is to make the system a little more regular, a little more predictable, a lot less gameable; that’s a great way to game the proposal (note that the “pocket veto” idea was mine, not the author’s).
I suppose you could establish a rule that any 40 senators could call for a vote within the thirty days; that way, if there’s enough to sustain a filibuster, there’s enough to force the vote. But I dunno.
This is confusing. Does “40 senators could call for a vote” mean that the 60-vote requirement for cloture is no longer operative? Or is the plan that the vote on final passage of the motion to advice & consent on the nomination itself actually require 60 votes for passage (whereas historically it has only required a majority)?
Yeah, good point, bad idea.