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Thursday, April 13, 2017

Limit the power, not the terms

With the confirmation of Neil Gorsuch as a Supreme Court justice at age 49, the Washington Post suddenly is worried about justices serving too long. This is a lifetime appointment that should block excessive liberal mandates from an unelected Supreme Court run amok.

The Washington Post through a column by constitutional law professor Richard H. Pildes called for term limits of 18 years for justices.

From Richard H. Pildes in the Washington Post:
The Supreme Court confirmation wars will become less heated only if the stakes in individual appointments diminish. One way to bring that about would be a constitutional amendment limiting Supreme Court terms to 18 years, staggered so that vacancies would occur at regular two-year intervals. Academic authorities on the Court and others have been floating versions of such proposals for years, but they have gotten little political traction. Absent change of this sort, the confirmation wars are likely to grow hotter.
Term limits are one way.

The better way is to rein in the power of the Supreme Court. In my 63 years, justices repeatedly have decided issues that are better left to state legislatures.

For example, after four states decriminalized abortion, the justices decided it was a right for every woman.


Because a woman in Texas lied about being gang raped?

Justices have acted as the super state legislature on capital punishment twice, first banning it and then saying OK you can.

Most recently, the justices legalized gay marriage -- re-writing the constitution of the state  of California.

Why is the Supreme Court deciding these matters? None of these are matters for a president or a Congress, so why should a Supreme Court decide them?

Power corrupts.

And power based on seniority corrupts in the cruelest way.

Arms flapping uncontrollably from age like a winged bird, Bob Byrd -- a man I detested while he was alive, but whom I forgive in death -- stayed in the Senate until the day he died, setting a record of 51 years, 5 months, 26 days, plus another six in the House.

The five longest serving senators -- Byrd, Daniel K. Inouye, Strom Thurmond, Ted Kennedy, and Patrick J. Leahy -- all served in the 21st century. In fact, these lifers served exactly 28 years together from the presidencies of Ford to Bush 43.

I have lived through at least part of 19 of the 20 longest serving senators. That's out of 1,971 senators dating back to 1789.

The reason is power. They have it and they will not give it up.

A gerontocracy might work if you had men and women of accomplishment in it; Ronald Reagan, Donald Trump, and Donald Rumsfeld are excellent examples of people who achieved greatness outside of politics and served the public, instead of having the public serve them.

But Bob Byrd. What did he ever do, except try to organize a klavern in Beckley when he was in his 30s?

Ted Kennedy?

Daniel K. Inouye and Strom Thurmond were heroes of World War II. The former overcame racism and gave use of an arm to his country, receiving a Medal of Honor. The latter resigned as a judge to enlist in the Army. He went Airborne, and landed in Normandy on D-Day. At age 41. He received the Legion of Merit and a Bronze Star.

Sadly, both were in the Senate way too long.

From Pildes:
The power of the Supreme Court has increased significantly. Over the 20th century, the court became more aggressive in declaring federal and state legislation unconstitutional. In the 1940s and 1950s, the court was invalidating about one act of Congress each year. In the 1990s, that number had become about four a year. Since 2010, it has been about three per year.
Rein it in.

The original, "Trump the Press" chronicled and mocked how the media missed Trump's nomination.

It is available on Kindle, and in paperback.
Then came "Trump the Establishment," covering the election, which again the media missed.

It is available on Kindle, and in paperback.

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  1. Term limit congress first. Then make the court follow the Constitution.
    Finally, give Congress the power to over turn SCOTUS blunders. They can over ride a Presidential veto, they should be able to do the same to a SCOTUS veto.

    1. This comment has been removed by the author.

    2. I have concerns about Congress overruling the SCOTUS but I understand why that may be needed. The 14th Amendment has a liberty statement, "nor shall any State deprive any person of life, liberty, or property, without due process of law", but no mention of privacy which is the basis of abortion and gay marriage. A constitutional amendment to allow these actions would never have passed, so the SCOTUS stretched the Constitution due to many justices believing in a living constitution. So if we want to change a SCOTUS ruling that is considered unjust/improper, make it at least a supermajority of a 4/5 vote in each house of Congress to reflect the will of the people.
      Thinking about this proposal's downside, it came to mind that had the Dred Scott decision been the other way, with the country being so pro-slavery or just plain anti-equal rights oriented at the time, IMO, it can't be too easy to overrule the SCOTUS.

    3. AMR, agree, a super majority to be sure, and possible require any thing that limits individual rights to be put to a vote of we the people.

    4. Congress already has the power to overturn the Supreme Court via the amendment process and gas done so in the past. See: Dredge Scott and the 13th A.

      The problem is that members of Congress are only interested in staying in power, so avoid controversy soas to alienate the minimum number of voters.

      We need a COS.

  2. WaPo wouldn't have printed that if Hillary had won. It's all about Dem power.

  3. Something about the term "lifetime appointment" just rubs me the wrong way. There should at least be a process to remove a judge who becomes unfit. - Elric

    1. They can be impeached as can the President. Hard to do though, as is any impeachment of high profile persons. The late Justice William O. Douglas had impeachment investigations twice, the last being in 1970.

  4. In the immortal words of Ronaldus Maximus, "There you go again." How much you wanna bet this issue would have been raised if it were a Liberal 49 year old Justice we were talking about?

    The Proggies are forever trying to move the goalposts (the Constitution) but not for the good of the country, no no no. They just want more power. Changing the Constitution is not like changing a grocery list, nor should it be. Good luck with that pesky 3/4 mandate, guys. Hell, you probably want that changed too.

    How's about this: A modified JeremyR amendment.

    No member of the Legislative or Judicial branches shall serve for a period exceeding 18 years.

    A package deal. Yeah, I'll reluctantly agree to a grandfathering clause for all current members, but going forward, that's the only idea I could get behind.

    1. I'll meet you half way, 12 years, grandfathering only if they forfeit their retirement benefits.

  5. Term limits for Congress and the Federal bench.

    When the Constitution was written, you died around 40 unless you had some bucks and lived near a doctor, then you might well see 50 (Ben Franklin must have seemed older than God).

    For the people writing the Constitution, term limits were irrelevant.

    We found limiting the Presidency was a good thing, I think limiting Congress and the Federal bench would be, too.

    Oh, and limiting John Marshall's illegal power grab wouldn't hurt, either.

  6. Sorry Don, you lost me at "constitutional law professor".
    I heard of a guy named Obama whom they declared with such a title.
    Now, that title means nothing

    1. True, but Obama and Bidden were instructors not professors. The media elevated them improperly, although in Obama's case reportedly the university did at times addressed such positions as professorships.

    2. True, but when Obama is associated with "constitutional law professor", the profession which does not clarify loses its varnish.
      Not my fault.
      The law profession could have worked harder to CLARIFY the distiction, but they did NOT.
      Not my fault. The loss of prestige is theirs.
      All constitutional lawyers are now lower than garbage collectors (men and women).
      So sad to see a former valued profession became tarnished thusly, but they didnt guard it suffixiently and allowed any ole fool who taught an occasional course be labeled thus.
      You should here what I have to say about community organizers

  7. US Constitution, Article III Section 2: "...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."

    This phrase has been interpreted to mean that Congress, at any time it wishes, may limit judicial review by the SCOTUS of certain matters of its own choosing. AFAIK, that power has never been used to limit the reach of the SCOTUS in any way, or regarding any particular piece of legislation Congress has passed. It would be interesting to see what would happen if Congress did avail itself of that authority. Would the SCOTUS dare to challenge the right of Congress to pass any such law that prohibits legal review by the Court?

  8. The real problem seems to me that Congress wants the President and the Supreme Court to do their work for them. Ostensibly they know the Constitution and their part in it, but they don't act that way.