Monday, February 23, 2009

Court-packing by stealth 

Nothing irritates the Democrats more than a conservative Supreme Court. The sainted FDR intimidated the Court into abandoning "substantive due process" -- the only real protection that rights in property and contract had against legislative power run amok -- with his "court packing" plan. Now a group of "legal experts" is calling upon Congress to regulate how the Supreme Court "operates."

If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?

A group of prominent law professors and jurists thinks not, and the group says in a letter to congressional leaders that there is no reason Congress should consider the operation of the high court sacrosanct.

"We do not suggest, and would oppose, any interference with the substance of the court's work," says the letter, which was organized by Duke University law professor Paul D. Carrington and signed by 33 others from different stations on the political spectrum.

But the group said Congress has every right to address how the court operates, "a subject it appears not to have seriously considered for at least seventy years." (emphasis in original)

The "term limits" proposal, something Congress does not tolerate for its own members, looks like nothing more than an attempt to give the political branches more leverage over the judicial:
For starters, the group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court's decisions "will reflect the moral and political values of the contemporary citizens they govern."

To get around the Constitution's prescription that justices serve for life, the group would let justices stay on the court in a senior role -- filling in on a case, perhaps, or dispatched to lower courts -- or lure them into retirement with promises of hefty bonuses. (emphasis added)

Of course, FDR's original "court packing" scheme was also an attempt to "get around" that Constitutional requirement, but by dilution rather than retirement.

It is not hard to imagine why these "legal experts" did not make this proposal last year. It is only interesting when one party has dominant control over the two political branches and is frustrated that it cannot effect all the hope and change that it wants within the boundaries of the Constitution as it is then understood.

MORE: A response with substantially more actual thinking than my own drivel. That said, I really don't think I "fumed."


By Blogger drank, at Mon Feb 23, 11:03:00 AM:

The idea of term limits for justices is potentially a good one - see this paper, for example. An 18 year term would allow every president to nominate two justices.

But the thing that drives me nuts is your "legal experts" coming up with yet another legalistic hack on the plain language of the constitution. Why not, as the two authors above do, simply call for a constitutional amendment? That's why Madison wrote Article V, after all.  

By Blogger Anthony, at Mon Feb 23, 11:30:00 AM:

Because the resistance such a move might create, once it got into the public's consciousness, would mean it would never garner enough states for ratification. Much easier to ram a "procedural change" through a legislature where you control both houses.  

By Anonymous Anonymous, at Mon Feb 23, 11:59:00 AM:

Cute idea, but it appears to be yet another ingredient in a noxious recipe guaranteed to result in civil war.  

By Blogger RPD, at Mon Feb 23, 12:05:00 PM:

So, are the three branches being coequal just something I imagined?  

By Anonymous Anonymous, at Mon Feb 23, 12:34:00 PM:

Why not "call for a constituional amendment"? For the same reason Russ Feingold wants to finess the fourteenth amendment, and adopt a federal standard on replacing senators. As Instapundit put it the other day, "pluralism is just so last century". It's difficult to amend the constitution, and the administrative state has found they can end-run constitutional issues by fiat, tying anti-constituional stuff to threats to stop road payments or medicare or some such nonsense.

The left has so over-reached already that they don't see the building rage in this country. Pretty soon the Police will have to stop drivers with anti-Obama signs in their cars and the Secret Service is going to start searching their houses! Oh wait, they are already....  

By Anonymous Anonymous, at Mon Feb 23, 12:56:00 PM:

The SC or other judges should not serve for life. To me the only question is what change to make.

It is best if the issue is tackled by amendment. A fifteen year term seems about right.

I would also add the provision that a SC appointment not only be approved by the Senate but also by the states. If half the states legislatures object to a given appointment within one year the appointee would be removed.

But as a practical matter the Dems are going to rule before 2010. And they will try anything to stay in power. We will be lucky if the 2010 elections matter.  

By Blogger Escort81, at Mon Feb 23, 01:03:00 PM:

At least FDR had a reason to pack the Court -- a series of adverse decisions, including the three announced on the famous May 1935 "Black Monday" were a huge blow to FDR's New Deal legislation. FDR took it personally.

The Supreme Court won't have a chance to do anything similar to the Obama administration for a number of years, simply because it takes a while for a case to wind its way there.

Perhaps this is simply a case of looking at the people on the court and saying, well, the next two seats to come up are likely to be Stevens and Ginsburg, so with Obama nominating their replacements, there will be no net gain in liberal justices. Scalia, Thomas, Alito and Roberts represent the bloc that some people would like to break up. At 73, Scalia is the oldest but appears to be quite robust. Kennedy is of course the swing vote.

The Framers wanted the three branches of government to be in constant tension (to a greater or lesser extent over time) so that political power could not be consolidated quickly at the federal level. When that basic structure is altered, bad things can happen. It's ironic to me that the same folks who claim to be so concerned about basic civil rights (speech, press, religion, etc.) would want to put more power in the hands of relatively fewer people, instead of keeping political power diffuse.  

By Blogger Dawnfire82, at Mon Feb 23, 04:43:00 PM:

The power needs to be in the hands of the right people.  

By Blogger Christopher Chambers, at Mon Feb 23, 05:14:00 PM:

But alas, TH, Toto always comes to pull the curtain way:

--U.S. Sen. Jim Bunning predicted over the weekend that U.S. Supreme Court Justice Ruth Bader Ginsburg would likely be dead from pancreatic cancer within nine months.
During a wide-ranging 30-minute speech on Saturday at the Hardin County Republican Party's Lincoln Day Dinner, Bunning said he supports conservative judges "and that's going to be in place very shortly because Ruth Bader Ginsburg … has cancer."
"Bad cancer. The kind that you don't get better from," he told a crowd of about 100 at the old State Theater.
"Even though she was operated on, usually, nine months is the longest that anybody would live after (being diagnosed) with pancreatic cancer," he said.--

Classy. Real classy. Is he one of the "right people" of which you speak, Dawnfire?

Just when I think the right can't go any lower...  

By Anonymous Anonymous, at Mon Feb 23, 06:46:00 PM:

Senor Chambers, comparing yourself to a small dog is unnecessary.

Beyond that, ascribing a politician's gaffe to the entire "right", ie the majority of the country, is pretty goofy.

But I am glad of one thing, in your post you managed not to call anyone a racist. Progress.  

By Anonymous Anonymous, at Mon Feb 23, 08:25:00 PM:

TH, you missed this:

"The new policy would not take effect until those already on the court are off"

The main effect of the proposals are to limit the power and future terms of the people who will be appointed to the Court - in other word's, Obama's nominees.

If this had been proposed in 2001, I think conservatives would've called it an attempt to limit Bush's appointments.

As a non-conservative, I think it's fine.  

By Blogger Dawnfire82, at Mon Feb 23, 09:53:00 PM:

I was being sarcastic in response to the previous post, you illiterate.

So, no.

Just when I think the Left can't get any dumber...

P.S. Aren't you supposed to be a writer/professor?  

By Anonymous Anonymous, at Tue Feb 24, 12:19:00 AM:

You don't really need term limits to control the Court. What you need is to tell the court what it may and may not rule on. That is, control its appellate jurisdiction.

Conveniently, Article III, Section 2 of the US Constitution gives Congress that power: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

I don't know if this power has ever been exercised by Congress, but it can easily be used to make anything unreviewable by the Supreme Court.

I think that sitting judges can be removed, life tenure notwithstanding. First, where in the Constitution is life tenure prescribed for Federal judges? Nowhere does Article III specify the length of a judge's Office. It only specifies that they hold their offices during Good Behavior. Who defines Good Behavior along with any other terms under which a judge's Office is held? In my opinion, Congress. In addition, Article III, Section 1, gives Congress the power to "ordain and establish" inferior courts, so it follows that Congress also has the power to disestablish those same courts.  

By Blogger Gary Rosen, at Tue Feb 24, 02:29:00 AM:

"Senor Chambers, comparing yourself to a small dog is unnecessary."

Not to mention highly insulting to the dog.  

By Blogger Gary Rosen, at Tue Feb 24, 02:32:00 AM:

"Classy. Real classy"

Right, Chrissy. Your posts are so classy. And grammatical. And coherent.  

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