Hypothetical 18 Year Terms for Supreme Court Justices
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  Hypothetical 18 Year Terms for Supreme Court Justices
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Author Topic: Hypothetical 18 Year Terms for Supreme Court Justices  (Read 985 times)
Sorenroy
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« on: March 07, 2017, 04:04:14 PM »

Since 1950, there have been 17 people who have been appointed to and finished their role as justice on the Supreme Court of the United States. While the amount of time each of these people served varied tremendously (from 2 years, 301 days for Arthur Goldberg to 35 years, 127 days for John Paul Stevens), the average for the group is 20 years, 294 days. This is almost seven years longer than those appointed to the Supreme Court between 1900 and 1950 and likely is a reflection of the increasing life expectancy in the United States.

One of the points I heard in the 2016 election (on both sides) was that you had to vote for Trump/Clinton because of the long term impacts that their Supreme Court picks will cause. There is definitely some truth behind that. Not only is Antonin Scalia's spot now going to Trump's choice, but three other justices will be over 80 by the time Trump leaves office. While highly unlikely, Trump could, in only one four year term, be in charge of appointing a total of four justices to the Supreme Court (for reference, only nine Supreme Court justices have been appointed in the past 40 years [1987 forward, 11 if you stretch back to 1986]). In one term Trump could put forward as many justices as Obama and Bush in their 16 years combined. And this is not only coming from a liberal perspective. If Clinton had won, she would have this same power in her first term as well.

Now, I very much doubt that we will see the rotation of another three seats in the next four years, but I bring it up as an example of, what I believe, is a system that makes little sense. Why should one president be given so much more power than their predecessor? Imagine if Trump and Clinton's unpopularity had spawned a successful third party that won. They would be able to put forward four of their own justices that would likely be on the court for at least the next 20 years.

So what's the solution? As it says in the title, one solution I thought of was 18 year terms. This would mean that each president would nominate exactly two justices. If a justice decided to retire, resign, or die while on the bench, the current president would be able to appoint a replacement to fill out the remainder of the term. There would be no term limits but a justice would have to be renominated and reaffirmed to take a second (or third) term. In this way the power of the president over the Supreme Court is balanced out somewhat while (for the most part) not effecting any of the justices.

Anyway, this was just something I brainstormed up while doing some research for my American Government class and I wanted to share it. What do you guys think?
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« Reply #1 on: March 07, 2017, 06:59:03 PM »

I've had similar thoughts. One other solution could be to take the power away from POTUS and give it to the Senate. One plan I thought of was:

1) a shortlist of applicants are drawn up by some sort of council of judges after every other election cycle.
2) the senate, at the start of every other session, selects three picks by secret ballot (to reduce partisan nonsense) and by PR-STV (to ensure a broad diversity of views in each cohort, which would serve as judges for twelve years. (I considered every single session selection a new bench, but thought there would be too much turnover).
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Associate Justice PiT
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« Reply #2 on: March 07, 2017, 07:00:53 PM »

     It's an interesting idea that would solve some of the problems that we face now. I will say that if we are going to term-limit justices, I would prefer that we just limit them to one term. The less that the judiciary is held to account by politicians, who put ideological concerns over the application of justice, the better.
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MarkD
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« Reply #3 on: March 07, 2017, 10:17:16 PM »

I would not want to see term limits on Supreme Court Justices, nor anything similar that guarantees more rotation. (I don't even want to adopt term limits on any officials; I think we've already got too many term limits. I would rather repeal the 22nd Amendment, and repeal the term limits on the Governors and state legislators who already have them.) But something does need to be done to reform how we select people for appointment to the Supreme Court. This idea:

I've had similar thoughts. One other solution could be to take the power away from POTUS and give it to the Senate. One plan I thought of was:

1) a shortlist of applicants are drawn up by some sort of council of judges after every other election cycle.
2) the senate, at the start of every other session, selects three picks by secret ballot (to reduce partisan nonsense) and by PR-STV (to ensure a broad diversity of views in each cohort, which would serve as judges for twelve years. (I considered every single session selection a new bench, but thought there would be too much turnover).

... would require a constitutional amendment. Anything like that deserves to have a great deal of discussion. Alan Dershowitz came up with this idea, in his book Supreme Injustice; How the High Court Hijacked Election 2000 (and this would not require a constitutional amendment).
"The first step [in reforming how Supreme Court Justices are appointed] must be to distance the process from partisan politics and to demand that greatness be the major criterion for appointment to the high court, as it is in many other countries and as it has often been in the history of this nation. The Senate and President could begin  by jointly appointing a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criteria of greatness, without regard to party affiliation, race, gender, ideology, or other such factors. After a thorough investigation, this list would probably be pared down to about ten candidates. The President would be expected - though he could probably not be compelled - to pick a nominee from that pared-down list. ... Any name selected from the commission's list would carry a strong presumption of confirmability by the Senate." (Page 203.)
"If the president and the Senate refuse to take up this effort to depoliticize the process by which justices are nominated, then I believe the bar and the academy should step in. They should appoint a commission to appoint a nonpartisan list of the most qualified potential nominees based on criteria agreed on in advance. This would put pressure on the president and the Senate to look to similar criteria. ..." (Page 204.)
I find it a little funny that Dershowitz does not seem to know how to define "greatness" in a peson who deserves to be appointed to he Supreme Court. He reminds me of Justice Potter Stewart's famous quip that he was not going to try to define hardcore pornography, "but I know it when I see it." In Dershowitz's case, a "great" judge would simply be one who would not rule in favor of a presidential candidate that they like if they hear a case similar to Bush v. Gore. But before he wrote the above sentences, he had already described the quality of "greatness" with some subtlety.
"Legal realists ... have long understood that the arguments put forward by courts to justify their decisions are often simply after-the-fact rationalizations of results reached for reasons they are unwilling to acknowledge publicly - reasons such as ideological, religious, or economic preferences. Lawyers are taught to argue both sides of every issue. Any good lawyer is capable of rationalizing virtually any conclusion he wishes to reach by plausible arguments." (Page 187.)
"Some judges, of course, do actually apply the law in a neutral manner, without regard to their personal preferences. Others deceive themselves into believing that the arguments they are offering are neutral - that is, not explicitly calculated to produce a desired outcome. As an experienced judge once told me, 'The judicial capacity to kid oneself is limitless, because judges want to - need to - persuade themselves that they are doing the right thing.' " (Page 188.)
At this point, Dershowitz seemed to have forgotten to say which judges are better - the ones who make decisions that are based on their own values, or the ones who make decisions neutrally, without imputing their own values. I think the answer ought to be obvious. The latter are the only ones who should be appointed to the Supreme Court.
"If justices are simply lawyers appointed for their political reliability,, then why should the public accept their decisions? For a court to have legitimacy, it must carry the moral authority of the ages and of a historical continuity with the past. It must display a commitment to precedent that constrains the incumbents even when they are strongly tempted to follow their own preferences. The public must be rightly convinced that the decision is a product not of the justices alone but of history, precedent, and law." (Page 202.)
Objectivity. That's what is needed.
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SteveRogers
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« Reply #4 on: March 07, 2017, 10:42:33 PM »

I don't think the proper solution is a regularly scheduled rotation of Justices. Then the Court would become a political issue in every presidential election. I think the unpredictable nature of Supreme Court vacancies helps preserve the independence of the judiciary in the long run. I say that as a person who is absolutely terrified at the prospect of Trump getting to appoint the next several justices. Things are really bad now in terms of the reputation of the Court and the politicization of the confirmation process, but I don't think we should panic and throw out a system that's worked well for a couple centuries because we've had one insanely bad confirmation fight. While I think it is important to rethink the systems set up in our Constitution from time to time, I'm highly skeptical of any amendment that touches on the basic balance of power between our three branches of government.
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MarkD
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« Reply #5 on: March 07, 2017, 11:09:52 PM »
« Edited: March 07, 2017, 11:11:59 PM by MarkD »

... but I don't think we should panic and throw out a system that's worked well for a couple centuries because we've had one insanely bad confirmation fight. ...

How about if we've had over a dozen bad confirmation fights in the last 105 years?
Somebody on some internet site several years ago asked how many times have their been very controversial nominations for the Supreme Court in the last 100 years or so. I responded with this list:
Mahlon Pitney, nominated by Taft in 1912, was opposed by many liberals because of a perception he would be consistently hostile to the rights of laborers.
Louis Brandeis, nominated by Wilson in 1916, was opposed by many conservatives because of a perception he was too liberal.
John J. Parker, nominated by Hoover in 1930, was defeated for confirmation in the Senate because of a perception he was racist and anti-labor.
Abe Fortas, nominated for Chief Justice by Johnson in 1968; confirmation in the Senate was stalled by conservatives, until eventually Fortas withdrew his name for consideration.
Clement Haynsworth and G. Harrold Carswell, nominated by Nixon in 1969 and 1970 respectively, both defeated for confirmation by the Senate because of a perception they were racist, too conservative, and were in general "mediocre" in their qualifications.
William Rehnquist, nominated in 1971 by Nixon, opposed by many liberals because of a perception he was too conservative and possibly racist.
William Rehnquist again, nominated for Chief Justice in 1986 by Reagan, opposed by many liberals because of the same perceptions.
Robert Bork, nominated in 1987 by Reagan, defeated for confirmation in the Senate because of a perception that he was too conservative.
Clarence Thomas, nominated in 1991 by Bush41, opposed by many liberals because of a perception he was too conservative and was generally under-qualified.
Harriet Miers, nominated in 2005 by Bush43, nomination withdrawn after conservatives were vociferous about being opposed to her.
Then all four of the last nominations (not counting Gorsuch): Alito, Sotomayor, Kagan, and Garland.
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SteveRogers
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« Reply #6 on: March 08, 2017, 04:05:37 AM »

... but I don't think we should panic and throw out a system that's worked well for a couple centuries because we've had one insanely bad confirmation fight. ...

How about if we've had over a dozen bad confirmation fights in the last 105 years?
Somebody on some internet site several years ago asked how many times have their been very controversial nominations for the Supreme Court in the last 100 years or so. I responded with this list:
Mahlon Pitney, nominated by Taft in 1912, was opposed by many liberals because of a perception he would be consistently hostile to the rights of laborers.
Louis Brandeis, nominated by Wilson in 1916, was opposed by many conservatives because of a perception he was too liberal.
John J. Parker, nominated by Hoover in 1930, was defeated for confirmation in the Senate because of a perception he was racist and anti-labor.
Abe Fortas, nominated for Chief Justice by Johnson in 1968; confirmation in the Senate was stalled by conservatives, until eventually Fortas withdrew his name for consideration.
Clement Haynsworth and G. Harrold Carswell, nominated by Nixon in 1969 and 1970 respectively, both defeated for confirmation by the Senate because of a perception they were racist, too conservative, and were in general "mediocre" in their qualifications.
William Rehnquist, nominated in 1971 by Nixon, opposed by many liberals because of a perception he was too conservative and possibly racist.
William Rehnquist again, nominated for Chief Justice in 1986 by Reagan, opposed by many liberals because of the same perceptions.
Robert Bork, nominated in 1987 by Reagan, defeated for confirmation in the Senate because of a perception that he was too conservative.
Clarence Thomas, nominated in 1991 by Bush41, opposed by many liberals because of a perception he was too conservative and was generally under-qualified.
Harriet Miers, nominated in 2005 by Bush43, nomination withdrawn after conservatives were vociferous about being opposed to her.
Then all four of the last nominations (not counting Gorsuch): Alito, Sotomayor, Kagan, and Garland.

Well sure, no nominee is entitled to smooth sailing through the confirmation process, and no president is entitled to the confirmation of their first choice pick. The occasional partisan fight over a SCOTUS vacancy is inevitable. But those spats have always occurred at unpredictable intervals. I just can't see any way that judicial term limits wouldn't lead to more politicization of the confirmation process. Whatever SCOTUS seat was up after the next presidential election would become a campaign issue ever single election. I just can't help but think that that wouldn't do any favors for the legitimacy of the court. (Not to mention the perverse incentives if justices had to "campaign" for reappointment by the president).
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MarkD
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« Reply #7 on: March 08, 2017, 08:29:18 PM »

We're somewhat in agreement, Steve, that we don't want to have term limits on the Supreme Court, as I said in my post at 10:17 last night. The process of choosing who to nominate for the Supreme Court and for what reasons the Senate should confirm them has been horrifically politicized, and term limits will not solve that problem at all. That post last night, long as it was, contains my solution to the problem of over-politicization of the Supreme Court.
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True Federalist (진정한 연방 주의자)
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« Reply #8 on: March 09, 2017, 12:06:23 AM »

There's nothing sacred or constitutionally required about nine justices.  Also, with 13 different federal circuits, there's a case to be made for increasing the size of the court, at least on average.  So rather than having a fixed size, the law could be changed so that at the start of each Congress, the President gets to nominate a Justice for a life term.  When a justice dies or retires, the size of the court goes down by one.  When a new one is confirmed, it goes up by one.  That way, we keep both the advantage of having life terms for the judiciary while at the same time ensuring we don't have the fiasco that happened at the end of Obama's term from occurring.
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