A few commissioners provided separate statements, including Tribe and a former judge (Clinton nominee) writing an op-ed strongly stating the situation is bad and that court expansion is appropriate. A sort of opinion concurring in judgment, all of the commissioners signing on the report, except for two conservative-leaning who (with explanation) resigned earlier. Still would like some clarity there.
Three other commissioners (conservative-leaning) submitted statements that are on the website itself. The overall message is that reform talk should not threaten the benefits of the American judiciary, which by lucky chance leans the ideological way of the writers involved. The judges were picked by Republican presidents and the other person in part is a member of the right-leaning American Enterprise Institute.
Addendum: Judge Griffiths retired in his 60s, it appears when the retirement benefits would kick in, saying he did so to care for his long ill wife. He was replaced by an ideologue in his thirties.
At the time, an advocacy group (much to his and his ideological supporters' disdain) submitted a request to his circuit to investigate if he was wrongly influenced by pressure from McConnell.
The chief judge passed the buck to Chief Justice Roberts, saying it should be examined by a more neutral party. Roberts' representative provided a statement that the request was not an appropriate use of the process.
I found it appropriate, on appearance of impropriety grounds, to investigate the matter. The appearance of integrity of the courts is an important matter and will involve some requests that are based on wrongful assumptions. Maybe, Judge Griffith was totally neutral in his timing here. If President Clinton had been in office, he would have resigned late in 2020 too. Or, maybe, he would have found a reason not to do so.
Things have mixed motives and some judges clearly do retire because the "right" President is in power. Term limits provide a check here.
Judges Statement
The judges' statement is a paean to the American judiciary. The federal judiciary has a "sworn duty to support and defend the Constitution of the United States." So, does every single state and federal official. When I worked for the post office (Christmas rush), I swore a constitutional oath. I swear a constitutional oath as a notary. The oath alone isn't magic.
"Every decision issued by the Court, with the exception of emergency or routine orders, is explained and supported by reasons in lengthy opinions."
This skips over a major problem regarding the shadow docket. The Supreme Court repeatedly does not explain themselves, especially not with carefully drawn lengthy opinions. This includes life and death matters. And, even the opinions provided are often somewhat selective.
Nearly half of the cases decided every term are decided by unanimous vote of the Justices.
Yes, the carefully chosen opinions include many for which there are agreement. But, many of the very important issues are closely divided by clear ideological divisions. It is spin to try to cover this up with this happy face approach. I am not saying this all is illegitimate. But, it is part of judging. It always was in our system. We should face up to it.
Federal judges are not politicians. They do not identify with political parties or the president who appointed them.
Sure, Jan. Judges are not just as a whole fair, but they are just above-the-fray robots who put aside their previous views and sentiments. And, after this, they do note the different life experiences but argue each brings an "open mind." Many do not, but many do, and that's fair. But, they cannot stop there. They have to lead with a fantasy
On those few occasions where judges lose their way, they fall short of the high standard we set for them.
Just a few bad apples. Fine. Anyway, the overall concern (for me and others) is the overall structure in place, including the political process of appointment and confirmation in recent years. You can have a bunch of fine judges and still have problems here. The system can also worsen the situation, having more people with "judges losing their way."
We are wary of such proposals, especially those that assume that judging is little more than a political act to advance favored interests.
Court expansion and other proposals do not assume that judges are "little more" etc. They realize, however, that a fantasy view of judging is wrong. That politics does affect the situation, that judges (especially those who come from very partisan backgrounds) do not suddenly get lost in their black robes etc. It is a factor involved, including the overall procedure used to pick judges that provides a democratic sense of legitimacy.
There is far more at stake than the outcome of any case
But, that sort of thing matters, including as shown by how the selection process works. And, a whole bunch of cases as a whole matters a lot.
Adam White Statement
The Supreme Court was established for an indispensable constitutional purpose: to decide cases under the rule of law.
And, the reforms need to be aimed toward helping it become a "court." I quote him. I'm not being snarky here. I'm not doing the Prof. Eric Segall thing (he wrote a book on it) about the Supreme Court not being a court. I find that whole thing stupid. It's a court. It is a special sort of court, but it is a court. And, the reforms do not want it to stop being one.
Court-packing is anathema to constitutional government. While Congress is empowered by the Constitution to add seats to the Court, the history of Court expansion is one of admirable self-restraint by Congress
The less than two-page statement refuses to actually admit the history here. The Supreme Court started with six justices. Congress passed a major court reform that in part would have shrunk it to five when a justice retired. Change of partisan control took that away. So back to six.
The Court soon expanded to seven justices and then a couple decades later we had the current nine. This might be seen as "packing," but probably is fairly seen as a reflection of the growth of the country as was a short-lived tenth justice to deal with California. Then, Andrew Johnson led Congress to shrink the Court to seven. Then, it was back to nine.
There was a push in the 1930s to expand the Court again, which might have worked (I'm unsure) if a key supporter didn't die. And, the lower courts expanded at various times as well, including during the 1970s. There is a push to expand it again, and there is actually bipartisan support for the need to do so, though Republicans want to wait until 2025 to add the new judges.
Did expanding the Court from six to nine hurt how they did their work? If doing so made sense when the population was something like 1/8th of today, is it so strange to do so again? Also, WHY is an expansion being offered? A basic argument is that the last three nominees especially perverted the process. It perverted the Court. It made it seem (and I would argue rightly so) that the Court can't do its job properly.
The job? To interpret the law. To decide cases under the rule of law. Of course, that isn't some magical neutral affair. I'm fine with stating that as the job of courts. But, as with oaths, other institutions are also important here. The people who create courts, nominate judges, confirm judges, and oversee them (impeachment power) all are involved too.
By tying Supreme Court vacancies and appointments directly and exclusively to the outcomes of presidential elections, a term-limits framework would further corrode the appearance of judicial neutrality and independence, making the Court a spoil not just of politics, but of presidential politics exclusively
The overall idea is to have eighteen-year terms, which long term will provide a steady rotation of judges, including two per presidential term. It is not just about presidential politics.
Nonetheless, judges are obviously a major political matter now. More fantasy (very bothersome) to not admit such things. Put aside the list Trump supplied. From early on, the nomination power clearly made who was president important.
White late grants (though the idea it is happening more lately is really something I would need to see statistics for -- "things used to be better" is consistently dubious) judges are resigning so that similar minded people replace them. But, leaves it to the judges' own self-restraint to change doing that. That is so fucking naive and if the courts were more liberal, especially the Supreme Court, it's somewhat hard to think he will be so blase.
It is to be remembered he belongs to a conservative-leaning ideological group. Conservatives -- and this is not illegitimate on a basic level -- have worked hard to pick ideologically friendly judges. The idea that term limits would suddenly change things for the worse here in any noticeable way is hard to believe, especially coming from someone of his leanings.
And to reliably deliver Supreme Court appointments to the president, a term-limit framework would need a constitutional amendment preventing the Senate from disagreeing with a president’s preferences (as the Commission’s report describes candidly).
A liberal leaning commissioner took part in an ACS discussion and argued that term limits can be established without an amendment. I guess the idea is to form a "judge" office and as long as you continue to pay them, you can provide a term limit for their main Supreme Court term.
I basically am dubious both in theory and it actually passing/being upheld. So, term limits probably would need an amendment. But, why would a term limit process require Congress not to be able to veto (not that they do much in practice) presidential picks?
I did not read the report, yes, but there is no real reason for that to be true unless what it amounts to is not agreeing to any nominees. To that extent, yes, ultimately the Senate cannot have a complete veto. The president will in practice have some significant power to pick judges. As he does now. Term limits do not change the net results here on a basic level.
Legislation setting clearer standards for granting writs of certiorari, or mandating judicial review of more kinds of cases, could help to make the Court’s caseload less a matter of judicial will and more a matter of judicial duty.
This is worth thinking about. I will leave such matters to those more deeply skilled at the line drawing here. The same regarding concerns about national injunctions, which these days is something (selectively) some conservatives are upset about.
As to restraint, sure. Sometimes, you need to be active as well. We are at that point. Restraint or not, you need a more honest and full look at history and practice to do a good job of analyzing things. I can disagree and think people have a fair accounting of things. I think the three here should have done more before putting forth their positions.
But, hey, it's good the commission was diverse. I guess it might have been nice if there was a statement posted from the other side, instead of seeing it as an op-ed alone.
ETA: "Fix The Court" is a good institution, that supports openness and various court reforms, including cheaper access to court material online.
The strong support, over expansion, of term limits, however, does not really appeal. An op-ed published in a local paper does not help. The argument that term limits will depoliticize things while the expansion will politicize things more is offered. As if politics is naughty, and we should (and can) remove it from the process. This is naive and/or suggests a bias.
It is just as likely that a steady cycle of two nominees every presidential term will lead to an organized political focus on what will even if "only" eighteen years are involved be very important positions. One might add, though I would offer it only mildly, if anything, a bigger bench would lead to less importance for each specific nominee. Or, some other approach that limits the power of the Supreme Court as a whole.
The op-ed also suggests some black/white matter where expansionists are really basically concerned with ideological results (bad!) while term limit supporters are more benignly concerned with a broken process. Expansion could worsen the situation and add fire to conservatives, who will say liberals just care for results. As if they don't, of course.
Sure. Realistically, term limits are unlikely in the short term, in part because conservatives do not see a problem with a 6-3 Court and many lower courts that they control or have significant membership in.
A few, including some Democrats, will question touching the sacred courts or will raise constitutional problems. Finally, I simply do not see any real chance of it being applied to the current membership. We are talking YEARS in the future here. Oh, joy! The system will be fully on balance c. 2050. And, the first couple (knock on wood!) will limit Democratic picks.
A basic annoyance to me is that people who support court expansion are not as simplistic as suggested. Most in fact also support term limits. Anyway, they too argue that there was a broken process.
Was there such a strong support for term limits when Roberts and Alito were chosen? No, you fucking moron. I'm sorry. So crude! The BROKEN PROCESS of the Trump years pushed many over the edge. It is not just bad case results.
And, yes, that does influence them. Why shouldn't it? We are operating here not as some sort of academic affair, but in the real world. The system is broken, a result of both a constitutional system that given recent events was particularly problematic (flawed things are like that -- you can work around them, but sometimes happenstance bites you in the ass) and additional norm breaking of a horrid sort.
Term limits alone won't fix this, surely not in any short term. Surely, the results of this process, as in ideological, matter too. If a fair system resulted in a conservative bench, you would push gain power, and slowly change the system. Changing the rules merely because you lost is usually a bad idea. But, when you lose and the system itself is bad, the bad results really rankle. Especially if a better system would have led to better results.
Expansion is not about the "courts doing the wrong kind of politics." A senior researcher at Fix the Courts providing such strawmen is tiresome. Courts do perform a sort of politics. Let's not be naive. Still, fundamentally, that isn't my concern here. It is dealing with a form of robbery (aided by a stacked deck) by letting the other side keep their ill-gotten gains and somewhat limiting the breadth of future ill-gotten gains.
And, doing so in a holier-than-thou way that sneers at the other approach, which is put forth by people who actually agree with your own as part of the solution. Well, I guess it is all academic since I don't see term limits actually happening any time soon.
If there was actually a fundamental political change, in fact, it might be mildly more likely a non-amendment court expansion (there already is a lower court expansion being seriously contemplated with bipartisan support, if not time-wise) would pass. Meanwhile, Fix the Court does support some good ideas.
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Thanks for your .02!