Posted on 02/15/2016 4:13:18 PM PST by conservatism_IS_compassion
Associate Justice Antonin Scalia, who served on the Supreme Court for more than 29 years, has “broken even” in secular terms, having died in his sleep at the age of 79. One would be hard-pressed to find a better argument against a fixed term for SCOTUS justices than the career and work of that eminent and grievously lamented jurist.
And yet I write to promote exactly that. Here we are, with the balance of the Court on a knife’s edge, and no better recourse than to hope that the Senate will confound the Administration and prevent it from naming the final one-fifth of a majority on SCOTUS dedicated to sophistry and the denigration of the rights which were our birthright. The Constitution not only does not specify a fixed term for justices, it does not even specify the number of justices who sit on SCOTUS. This leaves open, constitutionally, the possibility of a rogue Congress essentially abolishing the effect of the sitting members of SCOTUS altogether. Congress could, with a mere majority and the all-too-predictable concurrence of a president, double or triple the number of sitting justices, allowing the president to “pack the Court.”
I submit that this option should be removed by constitutional language. The way to do it, I submit, is to increase the size of the Court modestly, to eleven justices, fixing that number constitutionally. I would also fix the term of each justice at two years for each justice on the bench - thus, for eleven justices, 22 years. The stakes in each SCOTUS appointment would be proportionately diminished, and each president would appoint - or, perhaps better - choose as running mates along with the VP candidate on his ticket two prospective SCOTUS justices. I am open to other suggestions as to the selection of justices; possibly they should be elected in off-year elections in which presidential politics would not be entailed - or one of the two justices nominated by a presidential candidate in a given election should stand as a presidential running mate, and the other should stand on his/her own, two years later.
One advantage of fixed terms for SCOTUS justices would be some reduction of age bias. Although younger justice selections are more sure to survive and serve for 22 years than younger ones, it would not be so important if a new justice were likely to survive for thirty years, since s/he would still only serve 22 years, except to the extent that mechanisms might be put in place to use retired justices to fill in for recused or disabled non-retired justices. Thus, the prospective difference between a 45 yo justice selection and a 50 yo one would not be significant, tho as now there would be more of a prospective difference between a 50 yo justice and a 55 yo one. In fact, a minimum age of 50 might be considered to increase the track record on which a prospective justice could be evaluated.
Another consideration in favor of fixed terms for SCOTUS justices would be a reduction in the danger of a justice succumbing to Alzheimers or other mentally degenerative diseases while clinging to a seat lest an ideologically opposed replacement justice be selected.
If the Senate must talk about SCOTUS justice selection, they should debate regularizing the constitutional parameters for SCOTUS justices. That might not leave much time to undertake ratifying any particular Obama nominee, more is the pity.
Even if Obama is allowed to get away with a recess appointment, it will only last until shortly after the election. The remaining conservative justices will be able to stall any important decisions until a permanent replacement for Scalia is confirmed.
There is only one important decision that they will most likely be asked to answer before the election. That is Ted Cruz’s eligibility which is certain to be litigated either by one of his current competitors or the Democrats. This is a timing problem for Cruz. If no recess appointment is made, the Supreme Court will most likely deadlock. And a lower appeals court decision will probably stand. A challenge to Crux’s eligibility will most likely be filed where it will end up in a liberal leaning appeals court.
If a recess appointment is made... the Supreme Court would most likely do the dirty work with a 5 to 4 majority. Scalia’s death is a game changer... the game it just changed is our Republican primary.
You sound like FDR. This has been tried. A couple of times.
Unlike FDR I am raising the issue of packing the court as a venue of possible mischief, precisely to advocate a constitutional prohibition against it.
Murdered not “died in his sleep”. He had a pillow over his face! How do we know if this administration didn’t cause his demise.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.