Friday, April 08, 2005

Constitutional Amendment?

There is a conference tomorrow at Duke University Law School on Reforming the Supreme Court? In a commentary in the Wall Street Journal today, Steven Calabresi and James Lindgren discuss one possible reform which is ending life time tenure for the Justices. Specifically they discuss an amendment to the Constitution that would limit the terms of Justices to 18 years. The terms would be staggered so that one Justice's term would expire every 2 years. I think such an amendment has merit. What do you think?


James Sayno said...

The current situation with appointment of Supreme Court Justices is highly-politicized. During the election process in 2004, we heard much of a nominee having to pass a "litmus test" on various issues. Now we hear that Senate Republicans are proposing to pass legislation barring filibuster of judical nominees, the so-called "nuclear option". We also know that appointing a justice is one of the more binding things a president is able to do while in office. Although a savvy president may sit for 8 years total, their judicial appointment is likely to serve for 3-4 times that long and continue to influence policy and law.

I think that term limits should be imposed on the Supreme Court. Although I am not possibly capable of asserting what the founding fathers would have wanted, I do know they tended to limit power in all situations where they believed a dynastic or one-party dominated system was possible.

Due to a) the power vested in the position, b) the possibility that justices may legislate from the bench on key issues, c) the ability for a sitting justice to choose their retirement to fit perfectly with a presidential regime that will most likely pick an ideological clone - we should consider term limits on this very important office.

Plus if a Justice is nominated every 2 years, that would give every president the right to nominate two justices during his term. This would be a very predictable process. As it currently stands a president could pick none or historical highs of 10 (George Washington) or more recently 8 justices (FDR). Adding certainty to this sytem might avoid much of the politicization of the process.

James Sayno said...

Notice in the posting above that I did not mention that the old foggies on the Supreme Court might be out of touch with today's issues. This is often one of the criticisms leveled at the antediluvians we see in their black robes on CNN.

I think they showed more technological knowledge than I would have intially given them credit for in their recent hearings on Peer to Peer file sharing. Even Justice Souter mentioned the use of his IPOD.

ikichi said...

It would be interesting to see how many Justices have served on the Court for more than 18 years, to see if a 18 year tenure would change anything, other than perhaps allowing for younger Justices to be nominated without fear of one serving for the next four or five decades.
In general I have opposed term limits on the Court (as I have generally opposed term limits in general), more often favoring the so-called merit system Colorado uses. Of course, the merit system has a fairly major set of problems; such has who decides what ‘judicial merit’ is.

Larry Eubanks said...

ikichi voiced opposition to term limits for Justices as well as in general. But, no reason is given. So I wonder why the opposition?

ikichi said...

Ah yes, sorry about that, I've been working on a midterm, and I have reason to believe anything I say at this time will be incomplete, if not incoherent.

First, term limits creates lame-duck officials, who no longer have the reelection incentive that otherwise might play a factor in those officials’ actions, letting them do more unpopular things that they might otherwise. That said, having a reelection incentive does not necessarily play a big role in congress, as many districts are ‘safe.’ The Fifth Congressional District of Colorado, our own Rep. Hefley is one of the safest House members.

In addition, term limits can exhaust the pool of eligible candidates, as several area of Colorado found out in DA elections. This also has the bizarre incentive to allow incumbents to serve the maximum number of terms and then everyone jumps for open seats. This has been seen often in Florida, but could also explain the huge number of people running for Colorado Springs City Council in the mayoral election, but almost no competitive race this year.

My major opposition is more ideological however. I think term limits are rather undemocratic, precluding the ability of the electorate to reelect people. I recall once being told that in the US we already have term limits, they are called elections. I would ask how it can be argued that limitation of public choice improves democracy.

Well, that is a basic, incomplete and hopefully not too incoherent.

ikichi said...
This comment has been removed by a blog administrator.
Larry Eubanks said...

ikichi's reasons to oppose term limits seem to me well worth considering. There are two areas I would like to follow up.

First, consider the following portion of his reasons: "I think term limits are rather undemocratic, precluding the ability of the electorate to reelect people. . . I would ask how it can be argued that limitation of public choice improves democracy." While I am comfortable referring to our system of political economy as a "democracy," I think it is more accurate to describe it as a constitutional republic. I agree that in a sense term limits preclude the ability of the electorate to reelect people. At the same time, term limits will not be imposed on our system of political economy from some external authority. The specific proposal regarding Justices is to amend the Constitution, and this process of amendment is well defined by the Constitution itself. Not only does the amendment process involve our democratic institutions of governance, but the amendment process involves a super-majority. We can recall that the Constitution was amended to limit the number of terms for the President. At one level, such term limits preclude the ability of the electorate to reelect people, but at another level term limits would themselves be the result of choice by the electorate. Further, the illustration of terms limits for the office of President point out that changes at the constitutional level are in a real sense prior to (or at a "higher" level) specific elections for specific offices. Finally on this specific portion of ikichi's comment, limitations on government and those acting in government can make for better government. At least that seems to be one of the ideas upon which our Constitution was written. Congress is expressly limited in its powers, as is the Executive and Judicial branches of government. The Bill of Rights offer specific limitations. The 9th and 10th Amendments were also written with limitations in mind. Limitations in terms may well, in principle, improve our republican form of government.

The second area I want to follow up with is specifically related to term limits for Justices. What is the advantage of granting a Supreme Court Justice a life-time position on the Court? Does this give a Justice a long-term perspective on issues that give us some assurance that the Justice will more naturally tend to consider issues from a constitutional perspective?

Anonymous said...

Term limits are a valuable tool in limiting power/access to power. At the level of the Supreme Court, it's doubtful that the pool of candidate would be exhausted, as suggested by Ikichi. I'm not certain that, once some time has passed to allow the term limits for DA's to be implemented a bit longer, there will continue to be a limited number of candidates for the position, regardless of the area of the state.
The goal of a life-time position for the Supreme Court appointments may have been to reduce the effects of elections/political pressures on the appointees. There may have some some sense of a longer-term perspective, but I think that was not the primary reason.
Additionally, I've read that it's only been in the more recent past that the tenure has been as long as it is now. Prior, Justices may have died, or left the court after serving a shorter time period. Although there were some long serving Justices, in general the tenure has been increasing more lately.
Why would a longer term foster a more constitutional perspective on issues, as suggested by Publius?
If Justices were appointed every two years for an 18 year term, it would be very difficult to arrange for all the Justices to be of the same ideological bent without having a very long time with no change in political party in the President. It would take a set of circumstances where the same party held on to the Presidency for most of the 18 year cycle, assuming, of course, that Presidents would be successful in finding and appointing Justices of similar ideological bent as they themselves are. Justices can surprise, once they are on the bench, but in general their philosophical underpinnings are evident prior to appointment.

Larry Eubanks said...

I'm thinking that a longer term offers a perspective on issues that is removed from politics, which seems to me more in the day to day give and take of ideas. A longer time horizon encourages thinking about opinions that will last, as does the commitment of individual judges to respect earlier precedent. The longer the time horizon, the more a Justice can be encouraged to consider issues and principles that are not related to her own situation since the Justice may assume she will not have to look for another job after the Court.

Anonymous said...

Longer terms do give a longer time horizon and a different perspective. Are you thinking that the term should be longer than the 18 years suggested?
Given that an appointment to the Supreme Court usually wouldn't occur for someone younger than mid-50's, an 18 year term puts a retiring Justice at near current retirement age. But, "retirement" is a moving target with the proposed changes in Social Security, as well as the increasing vigor of Americans of retirement age.
And, what would be the role of a retired Justice--what "jobs" would someone who had served in that role be interested in? Would other public service, including elected positions, be of interest? Would it be comparable to the activities of former Presidents? Over time would there develop a whole cadre of former high public officials, with no defined role but either great wisdom to share or lots of free time and advice to "share" for a price (speaking fees)?