For that matter, should any of Supremes have a lifetime appointment?
When John Roberts was appointed Chief Justice a few years back, one of my brothers voiced an objection. It seemed inappropriate to him that Roberts immediately went from the appellate court to the top spot on the Supreme Court, both because there were more experienced Justices ahead of him. My brother opined that Bush should have been obliged to appoint the senior Justice on the court as the Chief.
I disagreed with this idea. But it seems to me that my brother has a point about the undesirability of lifetime appointments to the Supreme Court. Thus I’d like to float a few possible
[ol]
[li]Each Justice shall be appointed for a specific term–ten years, say–and not be eligible for reappointment afterwards.[/li][li]Each Justice shall be appointed for a specific term, but may be renominated after serving the first time.[/li][li]Keep the current setup, but have the Court itself choose the Chief for a specific term.[/li][li]Adopt setup (1) or (2) but have the Court choose the Chief as in option 3.[/li][/ol]
I’m not too concerned with the selection of Chief Justice: it is a title with far more prestige than power. Or rather, it is a monumentally powerful position, but so are the other eight seats on the bench.
In terms of actual power versus power the other eight have, the only thing the Chief really gets is:
He gets to set the weekly agenda, but any of the other eight can amend cases to this.
He is considered the most senior justice regardless of years on the bench. This is important because when it comes time to write the court’s opinion, the most senior justice of the group that confers on said opinion decides who writes the opinion. Since the actual literal text of the opinion is enormously important in the legal system this means the Chief Justice gets to wield a good deal of power here.
Nonetheless, I don’t view the Chief Justice as having “significantly” more power than the other justices. In fact, depending on the court’s makeup it has often been the case that the Chief Justice is not in fact the most powerful justice. Historically associate justices are much more likely to be “swing votes” politically and thus wield a lot of “actual” power.
I think that Supreme Court Justices should have an appointment with no fixed end date, I do think that a bipartisan congressional committee should exist that regularly reviews the competency of sitting justices over a certain age (say, 70 or older.) I think this necessary simply because of the lifetime appointment and the fact that some justices have held on long after their mental faculties were diminished.
No matter how you did this, or what criteria you used, such a congressional committee would automatically look at the judges’ judicial leanings rather than their mental competency. It’s easy to do: this judge, who rules the way I like, is obviously highly competent, while that judge, whose rulings are so clearly contrary to the Constitution, must be rulling that way because of onset of dementia.
It’s easier to have a cut-off date that applies to all, regardless of anything else about the judge. For the High Court of Australia, it’s 70 years, but the exact number is irrelevant. I think it would have to be by constitutional amendment (which would make it difficult to bring in), and existing justices of the Supreme Court would need to be grandfathered in.
Lifetime is right. I do not like the neanderthals Bush put in but sometimes it works that way. If they served renewable terms they might be auditioning for the incumbent president instead of staying above politics. The theory is that once they get on the court they are free from political influence, if they choose to be. I don’t want to give that up.
It would not have to be by constitutional amendment because the Constitution simply says that Justices shall hold their office during “good behavior.” Mental derangement would obviously not be “good behavior.” Congress already has vested in its powers the power to remove Supreme Court justices.
My scenario would simply have the bipartisan committee make recommendations, it would not have the power to remove a justice outright, that would require some sort of supra-majority vote (essentially it would be an impeachment.)
I doubt it would be abused with the above safeguards. Congress has the power to remove the President due to mental incompetence and that has never been brought up as a partisan political tool. The thing about a President is they serve for a maximum of eight years and are under the spot light almost continually, to win election twice they also subject themselves to even higher scrutiny in a campaign. So the chance of a truly mentally incompetent President (and since this is GD let’s keep the obligatory jokes that SD leftists always make to ourselves) even being elected is very low. However a Supreme Court Justice could be appointed in their 50s and still be serving at 80+, an automated review process would allow the issue of their mental competence to be brought up regularly in a de-politicized manner while not unfairly barring service to people over an arbitrary age level.
Day to Day political views change with the wind. Politicians have to change their ideals to stay in office.
The Supreme Court justices can retain their convictions or learn through experience but never have to sway to accomodate public opinion.
By holding office for a lifetime, the idea is that they attain a degree of expertise that cannot be gained in a single set term, no matter how long that term may be.
They may be free from political influence, but they are influenced by politics, and often inject it into their opinions. The problem is the same problem that is pervasive in Congress. You generally don’t have to buy a politician, you just help elect one who will act in a way you agree with; one who already shared your proclivities. In the same way, the president only nominates people who will presumably act in accordance with his politics. This problem is magnified by the fact that modern day nominees have, by and large, come from Ivy-League schools and appellate courts.
I’m not sure there is a better way to address the problem of politics, but I think there are a few things you could do to fix a few related issues.
First, make the job harder so people don’t stay on until they die. Restrict the number of clerks (from 4/5 to 2/3), mandate that they actually hear cases year-round, and hear more cases than they currently do. In the early 80’s, the supreme court heard around 150 cases; now they hear roughly half that amount. They should also mandate a minimum number of opinions that each justice needs to write in each term. In short, they need to make the job as difficult and as high-stakes as the power they are given warrants. There is no reason why a job that important should be regularly handled (without much difficulty) by octogenarians. Sorry, but it just defies all logic. Particularly since there is no financial incentive to work, since they are paid for life.
Second, we should encourage the president to nominate people with all different types of backgrounds to appellate and supreme court openings. They could be business people, people from mid-range law schools, or even non-lawyers (like this guy). It would be interesting to see a guy like Steve Jobs, or Dean Kamen on the court. Someone who doesn’t feel as bound by the rigid conformity that the current path to the court mandates.
There’s a major limitation on their ability to suck up. They don’t know who they need to suck up to. Alito, for example, was appointed in 2006 by a Republican President. With a ten year appointment like the OP described his term would end in 2016. So what should he be doing now if he thinks he needs to audition for a re-appointment? If he tilts his current decisions in the direction he thinks the Democrats would like, he runs the risk that the Republicans will be back in power in seven years.
The two biggest problems I see with lifetime appointments are that they make the membership of the court too random - nobody knows when there will be openings and how many there will be. Look at Taft - a one term President who happened to have the opportunity to appoint six USSC justices (and then went on to himself become Chief Justice).
The other downside is that Presidents look to get the most impact from their appointments by trying to nominate justices they think will remain on the court for a long time - ie young judges who are expected to have a few decades of service ahead of them. This has the perverse effect that the most experienced judges will be passed over for their younger colleagues. And it means that appointing judges is more of a guessing game then it should be. Presidents appoint somebody like John Roberts who only had two years of judicial history and hope that they won’t be surprised by what he does in the next thirty years.
How about the President gets to appoint the first opening within his/her tenure, then it alternates to the opposing party? And then back again if there is a 3rd? (I know it’s completely infeasible, politically. No one would ever vote for this.)
That’s vulnerable to the same problem the current system is - that one or both parties will attempt to stack the courts with young ideologues who have little experience but who will be a reliable vote for a long time. (Clarence Thomas is the most obvious example.) Even a 25-year term would put a cap on the effficacy of such an approach.
It’s strictly a theoretical question, though. Lifetime tenure for Justices and lesser Federal judges is in the Constitution, so any change would require a Constitutional amendment. The chances of such an amendment passing Congress with the requisite 2/3 majorities anytime soon are slim and none, and then there’s the matter of getting 38 state legislatures to ratify.
Question – so far as dementia goes, wasn’t there a justice at one time who DID have dementia? I seem to recall one of my teachers in high school telling me this.
In a way, the lifetime appointment could be an incentive for the justices to get along and build consensus, and the fixed term might be create a problem because of the potential for burned bridges. The idea of term limits has some merit, and maybe it could be done in the style of “25 years OR until age 85, whichever comes later.” But I don’t think this would even happen. Old people vote more than any other group, and the AARP would shit a brick if someone proposed a law like this.
You might be thinking of Judge John Pickering, who was impeached and removed from office after basically going insane. He wasn’t a Supreme Court Justice, but he was on the U.S. Court for the District of New Hampshire.
It sounds like Pickering started behaving oddly in his late 50s and really went off the deep end in 1801, when he was about 64. He was impeached in 1803 and removed from the bench in 1804. Consider that as a testament to government efficiency.
