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
cheers
comments from the fabulous Rodrigo Nunes:
ReplyDeleteYancy,
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?
Kisses,
Rodrigo
from the woderful Chet McLean:
ReplyDeleteI 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 mind...do 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 terms...how about states?