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More on Life Tenured Judges
February 11, 2009, 5:10 pm
Filed under: Ian | Tags: ,

Scott Lemieux responds to my defense of life tenure for judges:

So what advantages could life tenure have that could outweigh the undeniable costs? One potential response is nightmare scenarios. With all do respect, this response has to be considered highly unconvincing. It should first of all be noted that the alleged bad consequences involved in a president appointing five justices depends entirely on an unlikely 15-year limit rather than the much more likely 18-year limit (one every two years.) And, of course, a two-term president could easily get 4 or 5 appointments under the current system anyway. But more importantly, it simply misunderstands the nature of judicial power, which is by its nature politically marginal and dependent on the other branches. First of all, if the other branches of government started to agree with Thomas that the New Deal was unconstitutional, it wouldn’t matter what the Supreme Court thought because they could just repeal the programs. Nor would I be worried about the return of the “Constitution-in-Exile,” because if the Court tried to impose pre-1936 constitutional rules in the current polity it would stick for about 10 minutes. The judiciary will never win that kind of power struggle with the political branches, and this is just as true when they have life tenure as when they have long term limits. (And, of course, if the courts were violently out of step with the political branches the government could easily make life tenure irrelevant by just adding more justices to the Court.) I also think it exaggerates things greatly to say that Bush v. Gore proved that the courts are all-powerful, since after all the only political actors who could have challenged the Court agreed with the Court. If the Court had also decided McCain v. Obama, that would be different, but of course they wouldn’t. I don’t think that such hypothetical are very useful. (And, of course, it ignores the other sie of the coin: situations like the New Deal when reactionary holdovers of the old regime obstruct political change strongly favored by the elected branches.)

My initial defense of life tenure warned that, if judges serve for limited terms, one two-term President could conceivable appoint a majority of the justices.  This would give that person total control over two branches of government, which is more power than I am comfortable with any one person wielding—especially when one of those branches is the keeper of the Constitution.  Scott’s proposal will drastically increase the likelihood that this will occur.

As Scott notes, “Nixon got twice as many appointments in six years as Carter and Clinton got in twelve, with real political consequences,” and Scott is right.  President Nixon appointed four justices to the Supreme Court.  One year after he made his fourth appointment, the Court handed down a 5-4 decision in San Antonio Indepedent School District v. Rodriguez, which held that poor children do not have a constitutional right to the same caliber of education as wealthy or middle-class children.  Rodriguez was a massive departure from prior decisions expanding access to education, and it is likely that if Nixon had appointed one less Justice to the Court, it would have gone the other way and we would now live in a vastly different and better nation.

Scott’s proposal, at the very least, makes every two-term president a Nixon.  Because his plan calls for one justice to retire every two years, eight years in the White House means that you are one vote away from naming a majority of the Court.  The Court’s majority will be completely remade every ten years, and if a justice should unexpectedly retire or die, a two-term president will get to appoint the fifth vote.

I will concede that the justices probably wouldn’t last very long if they ever did something as radical as declare the entire New Deal unconstitutional, but the political branches have a very high tolerance for deeply radical decisions that would never survive political scrutiny.  Justice Scalia, for example, has drafted majority opinions establishing that employer provided health plans can illegally deny medically necessary coverage to their customers without consequence, and that the makers of defective medical devices have almost total lawsuit immunity.  Neither of these rules would ever have passed Congress, but Congress has done nothing to fix them.  The Lilly Ledbetter Act is an exception to this pattern of Congressional inaction, but it is a rare exception.

Which brings me to my last point.  The Supreme Court deals with arcane and technical doctrines which are not easily understood by many lawyers, much less the average voter.  This means that a president who wants to push a stealth agenda can do so through his judicial appointments.  Think of how many Democratic senators took one look into John Roberts’ baby blue eyes and were convinced that he was some kind of moderate.  Even now, polls show that American voters are more likely to know the names of the Three Stooges than the members of the Supreme Court. Presidents can do a lot of harm with their judicial appointments, and the voters are unlikely to connect the fact that they were screwed by their health insurer with the fact that President Reagan put Nino Scalia on the bench.

So letting every two term president appoint four or more justices can cause radical and dangerous shifts in the law, just as it did when Richard Nixon made his fourth appointment, and the party of the president who makes these appointments is unlikely to get blamed for it.  Our current system of life tenure mitigates this harm by limiting the number of appointments each President gets—at least most of the time.  Yes, Nixon got four, but he is the outlier.  Bush Light got 2.  Clinton got 2.  Bushweiser got 2.  Reagan got 3.  Carter got zero.  Ford got one.

Scott is right that there are costs to lifetime appointment, but I’m not willing to further aggrandize the powers of the presidency in order to fix those costs.

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3 Comments so far
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[…] Welcome LG&M readers!  I respond to Scott here. Possibly related posts: (automatically generated)US Supreme Court Appointments – a loophole?THE […]

Pingback by Against Mandatory Retirement For Judges « Overruled

This is innacurate, all three branches have to all be working in order to insure that the constitution is being adhered to. If the executive immasculates the DOJ, constitutional matters aren’t brought before the courts (example, contempt of Congress citations for Bush administration officials). If the legislative branch (or 40%)lays down for the executive then their constitutional perogatives are shot. If the judges fail to do their jobs (W v Gore, etc. ) then the other 2 branches are screwed. But the executive has the greatest potential to screw the electorate.

Make the judicial for life appointments direct-elected, and make them revokable by recall.

Comment by brantl

[…] I have previously indicated, I am willing to tolerate a fair amount of resistance to change in our government, if the result […]

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