in a perfect world of yancies: poll results, etc

14 November 2005

poll results, etc

Well, the results (such as they are) are in: it looks like the majority of you agree with my feeling that term limits for justices are probably a bad idea . . . to view the results, click "view" on the poll in the previous post, below, or click on poll results. Thanks for voting!

A couple of you--Rodrigo and Chet, to name names--were kind enough to send comments on your views; I think what I'll do is post those comments myself in the "comment" area at the end of this post. Thanks for sending those along! And please enjoy, dear reader, those comments.

For now I think it best to keep this post short and resist the inclination to talk more about court terms or politics in general (though Frank Rich's column on the administration's questionable policies in yesterday's Times was excellent, and I'd recommend reading it--if any non-subscribers out there are interested, I know some people and can probably track down a copy for you). . . .

we just (barely) got back from Arkansas, so expect some news on that soon



  1. comments from the fabulous Rodrigo Nunes:

    Rather than a term length, I'd propose a mandatory retirement age at, let's
    say, 70. It would make the turnover a little faster, while also diminishing
    some of the uncertainty regarding whetehr a judge is about to resign or not.
    Of course, this would also have its problems, for depending on the make up
    of the court we could see a president nominating more than half! Then,
    maybe a life tenure is a better option.

    I don't think supreme court justices should have limited terms. I suppose
    the main concern is with the independence of the judiciary, but that concept
    is itself full of problems. Independence from what? Formal independence is
    easy to have, but informal practice are uncontrollable. For instance,
    Scalia. Clearly, he's partisan. However, in cases that do not invovle the
    federal governemnt his partisanship is irrelevant. Of course, he does have
    an originalist view of the constitution mostly associated with social
    conservatives, but those positions are themselves contingent upon the
    broader political context. It has been shown that the Supreme Court never
    decides too far off the preference of the ruling majority, which would make
    the actual membership of the court almost irrelevant. Also, once in the
    SC, judges are constrained by a variety of formal and informal practices
    (such as rule of four, the order of deliberation, etc) that limit their
    ability to pursue their policy preferences unabashedly. In addition,
    precedent does matter. Yes, the constitution is whatver the hell they say
    it is, but legal discourse and the rules of constitutional interpretation
    also provide limits on how much of their own personal ideologies justices
    can pursue.

    So, independence is hard to come by, but the institution itself has
    mechanisms to limit its members. In addition, the broader ruling coalition
    has always the upper hand, and the court never really challenges the power
    holders (from whichever party). Given these, a justice for life is better
    than a limited term one because limited term judges may in fact be less
    constrained by the things I mentioned above. If the SC is not the
    culmination of your career, you may use it to set yourself up for after your
    term is up. Especially tru if judges feel the need to become political
    candidates, or if they are looking for cushy jobs at certain states or the
    federal governemnt. Some countries impose restrictions, for insatnce, in
    that they prohibit supreme court judges from holding any public job for a
    certain amount of time after their term is over. So, there aer many
    instituional designs available to ameliorate the danger of limited term
    judges using their position to build the foundation for future personal
    gains, but I'd still rather just have they sit there for life.

    Makes sense?


  2. from the woderful Chet McLean:
    I took your poll. I didn't think I was qualified to
    make a call on it, though. I answered that I didn't
    think so. I read Fed. #78, actually, mostly read it.
    I quit early because I kept getting distracted by the
    thought -that it was written in a different time for a
    different people...before ratification --and if I'm
    going to be persuaded I am going to need something
    that is a bit more practical. anyway, a few questions
    did come to you mean term limits for all the
    fed. jud., or just the S.C....what would poor J.G.
    Roberts do after the supreme court, I mean he is a
    worthy individual, isn't he...for a similar reason as
    that the House terms are as that they are, should the
    S.C. be so easily swayed by the opinions of the pop...
    What happens to a justice's consideration as the end
    of his/her term nears, would public opinion more or
    less effect his/her considerations as the term passes,
    ie P.O. typically declines over the course of a term
    for a president, would that be the same for a judge
    whom cannot be re-appointed, like a pres after 10,
    because what would the poor fellow do afterward, Is
    p.o. a bad thing for justices to be thinking
    about.....actually, I don't think you said anything
    about re-appointment, but....Are there any past
    decisions, that were unacceptable, that were clearly
    the cause of a judiciary without term limits... Does
    any other developed nation have something like this,
    ie about states?