Senate Shutdown

WSJ ^ | 4/2/8

[Redbob]

"In the final two years of GHW Bush's term, democrats confirmed 20 of Bush's appellate court appointments, up from the 17 of Reagan's appointments in his final two years."

And that would be because Bush Uno scarcely nominated a judge with whom Dimmocrats had any philosophical differences at all - why should they object?

[Non-Sequitur]

And yet somehow the chart above shows that Clinton got 15 judges approved.

Out of 40-odd nominees. Bush has gotten 6 approved out of 17. All that means is that the Dems are playing the game better than the GOP is.

[P-Marlowe]

The above does not say that they have lifetime tenure. It says they will hold their Offices during good behavior. It doesn't even say that their tenure is lifetime even if they demonstrate 'good behavior.'

You are absolutely right, xzins. The language does not state "for life" and the power to regulate the length of the office does appear to be a power implicitly, if not specifically, reserved for Congress.

Sometimes it takes a layman to show us lawyers what the exact language of the Constitution says.

Thanks xzins. Excellent analysis.

The Federal Judiciary has politicized itself by becoming a legislative body. It is clearly time for Congress to consider imposing term limits.

I also think they need to pass a law that law clerks are not allowed to write opinions for judges. These Supreme Court opinions on the most mundane issues go on and on and on, and it is not surprising to see a Supreme Court opinion on some mundane issue go 70 or 80 pages.

Congress should limit the length of a Federal Court opinion to 15,000 words or less.

[Non-Sequitur]

Heck. Right now we'd be celebrating if they'd move GWB's nominations in 245 days instead of years.

And as I said before, if you are the Democratic Senate leadership why would you move on one of Bush's lifetime judicial appointments if you expect Obama to win in November? Wouldn't you rather leave the seat open so that he can fill the spot rather than Bush? And if Obama wins and through some miracle the GOP controls the Senate in 2012, would you expect the Republican head of the judiciary committee to act any differently?

[Night Hides Not]

All that means is that the Dems are playing the game better than the GOP is.

They're always better at playing the game. Methinks Snarlin' Arlen is weary of being in the minority. Combine that with the steroids he's been taking to fight cancer, and it's no wonder he's getting testy.

[darkangel82]

Specter is in the majority, since he is a Democrat wearing the R label.

[cinives]

Yeah, RINOs never learn. Just like the Dems, however, they are smart enough to reproduce...

[cinives]

Got that right. And McCain is just more of the same.

[Publius Valerius]

I think you're mistaken in your reading. Part of the problem, I think, is that Congress has created a number of Article I courts that are very clearly Article III courts masquerading as Article I courts, which do not possess lifetime appointment or salary protection.

However, there is no question that, for instance, United States District Courts are Article III courts, in which the officeholders enjoy lifetime tenure and salary protection. While Congress has the power to establish or abolish these offices, so long as the office exists, its holder must be given his proper Article III protections.

This is explained in Federalist 78, where Hamilton goes on at some length as to why lifetime appointment is vital: "Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to [the courts'] necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws."

Hamilton continues: "There is yet a further and a weightier reason for the permanency of the judicial offices. . . ."

Our Article III courts are designed to be immune from politics. Lifetime appointments more carefully assure that. Lifetime appointments allow for a better quality of judge and better law. It's simply a better system.

[Publius Valerius]

It is clearly time for Congress to consider imposing term limits.

This isn't even up for debate. It's unconstitutional. Period. The Supreme Court's been over this before and has repeatedly held, in no uncertain terms, that "good behavior" means lifetime appointment, subject only to impeachment.

[NeoCaveman]

And if Obama wins and through some miracle the GOP controls the Senate in 2012, would you expect the Republican head of the judiciary committee to act any differently?

Yes. I would expect the GOP to act the weenies they are and let about 20 judges slip through in the hopes that the Dems would do the same for us when the situation is reversed because that is how the GOP has acted in the past.

[pepsi_junkie]

It is time to remove lifetime tenure from political appointees.

Scenario: A law is passed limiting terms for federal judges....and it goes to the court for review and is struck down!

Remember who we all work for! There are a handful of unelected, unaccountable, virtually un-checked people in black robes with lifetime appointments that really decide our fates. There are no checks and balances on the supreme court, short of a constitutional amendment which is to say, in practical reality, that there are no checks and balances. We now talk about presidential elections as being really important because if one of our overlords dies, the president gets to nominate a new one and god knows if we get a bad one there nothing anyone can do for decades. It's a disgusting state of affairs that the court has been allowed to seize so much power for itself.

[the gillman@blacklagoon.com]

Shut it down and keep it down. The world is better off without that great deliberative body of thieves and traitors.

Send them home to their owners in China.

[P-Marlowe]

Our Article III courts are designed to be immune from politics.

Are you actually suggesting that these Courts ARE immune from politics?

Lifetime appointments more carefully assure that.

BS. Has it done that to date? No.

These Judges don't have to live under the system they create. If a Federal Judge or a Supreme Court justice were given a 12 year non renewable term, then he might be a little more realistic in his decisions knowing that someday he or she may have to actually live in the society they create by their asinine decisions.

It's simply a better system.

It has proven to be a complete failure.

[xzins]

There is no constitutional court other than the Supreme Court.

All other courts are established by Congress. Congress has the authority to establish them however Congress so desires. That is the text of the Constitution. And it is the text that is binding. One can imagine that the text we have, and not the text we imagine, was selected for specific reasons.

1. Congress initiates and structures (ordains and establishes) everything about all inferior courts.

2. The Constitution calls for a Supreme Court only. It ALLOWS for other courts under the direction of Congress, and even these are not necessarily permanent. (”time to time” they are set up.)

3. The Scotus justices are subject to good behavior tenure. The Constitution is silent about the tenure of Scotus justices. Presumably, the Congress could pass a non-reviewable law limiting the terms of Scotus justices — GIVEN that silence.

4. Congress clearly is the body that structures all other Federal Courts. It can structure them with built-in tenure. That would not in any way violate any “good behavior” requirement.

Interestingly, the justices of many State Supreme Courts are elected officials (my own included.) These constitutions go back to the generation immediately following our US Constitution. Apparently, any logic regarding the “independence” of the judiciary being tied to lifetime appointments were neither compelling nor binding. This is interesting in that those constitutions so often reflect the national constitution in most other areas.

[xzins]

Congress has the authority to pass a non-reviewable law.

BTW, Pepsi Max is best.

[pepsi_junkie]

Congress has the authority to pass a non-reviewable law.

Is that articulated in the constitution? I don't support any one branch declaring itself supreme, and if congress does so by stating it's laws are immutable and above review then they are doing so. I believe in turn that courts should be reviewing laws for constritutionality, not on the basis of their own desires and/or preferences.

[xzins]

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.

The above is from Article 3, Section 2 of the Constitution. Chief Justice Roberts wrote a paper on it and says it's pretty clear that Congress can pass a non-reviewable law.

In fact, they did so just about a year or so ago.

[Publius Valerius]

Has it done that to date? No.

Uh, actually, yes. Have you seen state court judicial elections? They are a joke. In my state, which regretfully has elected judges, judges actually campaign for the Supreme Court on overturning particular laws or rulings. Moreover, the lower judges in state courts are often woefully unqualified but keep winning reelection because of name recognition or a party machine. Heck, in my county alone, there are four judges with the same last name. And it's not Smith.

It has proven to be a complete failure.

Really? Why are plaintiffs' attorneys generally scared to death of federal court? Why do they typically fight, tooth and nail, to keep cases in state court? The answer, Marlowe, is because federal judges know what they are doing. They know the law and they don't have to worry about losing their job because of an unpopular decision.

[Publius Valerius]

The above is from Article 3, Section 2 of the Constitution. Chief Justice Roberts wrote a paper on it and says it's pretty clear that Congress can pass a non-reviewable law.

It's not clear at all. There's lengthy scholarship on this issue, dating back close to 200 years.

My position, as I've argued repeatedly on this forum, is that Congress cannot pass a law that is immune from Article III review. The reason why your argument fails is because you're reading that section of Art. III in isolation.

The first sentence of Art. III is mandatory. "The judicial power shall be vested...." The first sentence of section 2 is also mandatory: "The judicial power shall extend to all cases . . . arising under this Constitution . . . ."

Thus, reading Article III together, as we must, it's clear that Congress can limit the Supreme Court's appellate review. It's also clear that Congress can abolish lower federal courts, so some people have argued that Congress can create an "unreviewable" law, but this ignores the mandatory commands of Article III which clearly state that the judicial power must be vested in at least one Article III court, the judges of which must have lifetime tenure and salary protection, per section 1.