James Fallows writes about the politicization of the Supreme Court and, to his credit, since most polite DC media won’t touch it with a barge pole, this:
Among the implications: life tenure for federal justices, especially for the Supreme Court, has got to go, since it makes the appointment process a crudely cynical actuarial contest. (Locus classicus: Clarence Thomas, age 43 when appointed, so if he watches his weight he could plausibly end up spending most of his life as a sitting though silent Justice.) Eventually a sufficiently ruthless party will nominate Justices while they’re still taking their LSATs.
There’s no way that we’re getting rid of lifetime appointments for federal judges, but it seems like a sensible proposal. True to form, Republicans are already treating court appointments like the actuarial processs that it is. Alito (55) and Roberts (50) were clearly chosen for their youthful vigor along with their other reliable conservative characteristics. But when it came time for Democrats, they appointed a justice with Type I Diabetes, Sonia Sotomayor. We can’t have that. We need more softball-playing, youthful, closeted lesbians. If Obama’s next appointment is over 50, we need to raise hell.
beltane
If the FSM should choose to take one of the conservative justices in the near future (goddess forbid), Obama could do worse than to appoint Sandra Fluke.
Patricia Kayden
You’re being a little irrational. Nothing wrong with being over 50 years of age – especially if you are healthy and your mind is still strong.
And if Judge Sotomayor takes care of her diabetes, it’s a non-issue to me. She’s a sharp Judge — I’ve seen her in action and was impressed.
Schlemizel
I see your point but I’d rather have an actual liberal no matter the age. Its unlikely we are going to unseat one of the 5 great turds in the punchbowl unless FSM(blessed be His name) gives us relief via some heat attacks or strokes (doesn’t Roberts have a conditions that causes blackouts?)
Linda Featheringill
I think that the Supreme Court has another problem:
If our votes don’t count in elections [Bush & Gore] and if the laws enacted by our representatives [the current health care law] don’t count, then what do we have. We don’t have a democracy. Hell, we don’t even have a republic.
And if people perceive that political measures are ineffective, and if people do the math in the 99% vs 1% discussion, what do you think is going to happen?
Violence.
Yevgraf
I keep eagerly awaiting the sudden demise of Fat Tony and/or Uncle Clarence from a cardiac event. Sadly, their continued wasting of air is a testament to the gold-plated soc!alistical health benefits we supply to them, and also proves that there is no god.
mistermix
@Schlemizel: Roberts is, technically, an epileptic since he’s had 2 seizures in ~20 years but he had the second one after being appointed so that doesn’t count against the actuarial thesis.
Joseph Nobles
What I want: Roberts to retire suddenly for personal reasons, nothing life-threatening, and Obama to appoint Kagen Chief Justice and Goodwin Liu to take her place. I bet Scalia (and maybe Thomas) would flee in disgust, giving Obama two more solid picks.
Yevgraf
@Linda Featheringill:
Sadly, we don’t have the Weathermen around when we need them. Sometimes, a little bit of leftist anarchist violence keeps conservatard money men on a more even keel. They don’t like having to check out their cars for explosives in the morning, nor do they like having to pay bodyguards to ensure that their spoiled, entitled brats don’t get kidnapped from bars or college dorms.
c u n d gulag
The next Republican President will nominate a fetus from a wealthy and powerful Conservative family.
That’ll give new meaning to “Lifetime Appointment!”
Hal
Um, you have seen Clarence Thomas lately? I think the only thing he’s watching about his weight is the scale going up.
liberal
@Patricia Kayden:
Baloney. She’s a Type 1 diabetic who smokes.
As a judge, I think she was a good pick. But her potential health issues are pretty serious.
Related, I can’t imagine the selfishness that prevented Ginsburg from stepping down early in Obama’s first term. She’s a great justice, but WTF? And isn’t Breyer getting long in the tooth?
maya
Yes, unfortunately no SC justice resigns to spend more time with the family. But then there was Arthur Goldberg who quit to become UN Ambassador. WTF?
samara morgan
This is exactly why everyone should read Chris Mooney’s book.
There is a biological basis for all behavior.
MattF
I nominate Sasha Obama.
SatanicPanic
You’re right. Their next nominee is going to be a straight out of Liberty U zombie. They just don’t give a shit anymore.
MattF
@maya: That whole business was a disaster. LBJ persuaded Goldberg to quit, and then nominated Abe Fortas to replace him. People look back now on Johnson’s Presidency as the peak of liberal political power, but then forget that he self-destructed.
patrick II
Here is what happens to young, liberal judges:
The republicans play not only offense but defense. Liu was bitterly fought in part because of his age. The Republicans want no young, liberal judges on the Court of Appeals, which might put them in position for a long Supreme Court Run someday.
Republicans are just playing longevity numbers here, and will continue to have more justices on the court even if there are as many, or somewhat more, Democratic presidents.
kay
I really do think it would be helpful if media, and particularly lawyers who talk to media, would just stop it with this worshipful tone:
I’m not talking about idiot Tea Party “government sucks!” rhetoric, but IMO the hypotheticals posed by the conservative justices on the mandate came right out of Fox news. Carefully couching that in “a way most Americans can understand” is TOO DEFERENTIAL.
Kennedy got a really crucial point exactly backwards. I was shocked by that. He said the government had a “heavy burden” w/the mandate. That’s backward. HE has a heavy burden if he plans to overturn the law. I feel as if there is almost a collective, deliberate decision to spin these guys as brilliant, constantly, and I’m sick of it. If they’re brilliant, that will become apparent, I would think. We don’t need to be told they are again and again.
Marcellus Shale, Public Dick
@SatanicPanic:
regent law school will become the cradle of the supreme court.
Marcellus Shale, Public Dick
@SatanicPanic:
regent law school will become the cradle of the supreme court.
gene108
Please….I think right after the top SAT scorers turn 18, they should be tapped for the SCOTUS…
ppcli
@maya: That was LBJ’s massive screwup. LBJ wanted his buddy Abe Fortas on the court, and so he twisted Goldberg’s arm with all of his legendary LBJ persuasive power to take the UN Ambassadorship. Hard to believe that persuasion alone could do it, you have to believe the LBJ also had some additional hold over Goldberg like embarrassing information.
So we get Fortas, and when Earl Warren retires, Fortas is nominated for chief justice and Homer Thornberry for Fortas’ associate seat. Some ethics issues come up, Fortas is filibustered, so stays associate, and then is forced to resign.
So instead of Goldberg and someone else, we get Warren Burger as chief and Blackmun as associate. (Though Blackmun didn’t turn out too bad.)
Steve
@kay: Tom Goldstein is the head of one of the foremost Supreme Court practice groups out there. He is a reliable go-to guy for these sorts of gushing quotes, because he is disabled for business reasons from trashing the Court. Every time there’s a new nominee he always get quoted talking about how brilliant and well-qualified they are, because what else is he gonna say? You can’t call Justice Scalia a no-talent hack if you’re going to be asking him to rule in your client’s favor tomorrow.
MeDrewNotYou
@Steve: Out of curiosity, anyone know what Goldstein said about Harriet Meyers?
honus
@gene108: That’s right. There is no constitutional requirement that a supreme court justice be a lawyer or even have legal training. Dale Earnhardt Jr. and Tim Tebow are qualified for the high bench.
Tom
@mistermix: My family has dealt with epilepsy for the last several years. Epilepsy is pernicious because of it’s unpredictability and you are rather invisible to the rest of society. When Roberts had his seizure this coincided with a very dark time for my son. I’m not a Roberts fan, but I thought he could at least say a few words on seizures and living a full life with epilepsy. It was a wasted opportunity.
Shari
@maya: Sandra Day O’Connor resigned to take care of her ailing husband.
rikyrah
the court matters. which is why the PRESIDENT matters.
Sargent Pepper's Spray
I always thought ‘life tenure’ should somehow be federally codified as 20 years. That’s 5 presidential terms, it’s a lifelong assignment free of political compromise, and it eliminates the need to nominate a 19 year old fresh out of law school to the Supreme Court.
kay
@Steve:
Thanks. I so appreciate the frankness. I really, really don’t want to go the ignorant route; “they’re black-robed monsters!” or, “anyone with a lick of sense can be on the Court! Let’s appoint Donald Trump!” but the absolute fawning deference and adoration gets on my nerves.
My husband and I were joking at the media coverage of Justice Roberts, when he was appointed: “smartest lawyer alive today, or smartest lawyer ever in the history of the WORLD?” Pick one :)
It was like a parody.
Bill H
Would we be saying this if the majority of the sitting justices were youthful, healthy Democrats? I suspect we would all be applauding life tenure.
Similarly, we want to repeal the filibuster in the Senate, but I don’t recall any liberals wanting to repeal it when Republicans had the majority and Democrats were using it. Not that they used often enough, but…
patrick II
@Shari:
Unfortunately before she left she made sure the president she resigned under was a republican.
Cacti
Speaking of actuarial exercises…
Scalia is 76, overweight, and a smoker. It must be his deal with the devil that’s keeping him here.
Cacti
And as much as it would be decried as “court-packing”, there is nothing in the Constitution that sets the number of SCOTUS Justices at 9.
Changing that number merely requires a legislative act.
Gary Fuckett and the Mindless Gap
End the filibuster, then pass a Constitutional amendment to make Supreme Court appointments limited to 9 year terms, two maximum, just like the president. That way an appointment is made every year and a two term president will appoint/reappoint 8 of 9 justices.
That will defuse the current apocalyptic nature of the process and make these egomaniacs more accountable by exposing them for the political hacks they always have been.
Forum Transmitted Disease
@patrick II: Dems really need to learn how to think strategically. I see no signs of that happening anytime soon.
Ken
@beltane: If the FSM should choose to take one of the conservative justices in the near future (goddess forbid),
It would put the parade of conspiracy nutjobs after Brietbart died into perspective. If a limo carrying Thomas, Alito, Roberts, and Scalia crashed with no survivors, we might even see peak wingnut.
kay
And, if I could just vent, I’m developing a real animosity towards Justice Kennedy as a “trial judge”, with FACTS, not law.
I saw it in the horrible election law decision that came down after Bush v Gore, because he seemed completely clueless about how people actually live in this country, many of them do not, in fact, have photo ID, nor do they need driver’s licenses, because they live in urban areas, where distances btwn Point A and Point B are shorter and there is public transportation, hence, the GOP FOCUS on demanding a driver’s license.
AFTER Bush v Gore, this decision came down, so much for lessons learned.
Keith G
I figured that in a couple years Clarence Thomas will go out with a stroke. I see the event occurring while he huffs on a bottle of poppers as his wife assists with the insertion of a double headed pleasure device.
A Federalist Society clean up crew will have to be called in before the medical examiner is notified.
Marty
For me this just highlights another division in our society. For upper middle class elites like Supreme Court Justices, we consider age 50 to be quite young. Their working life can easily be expected to stretch out for another thirty years.
But for middle and lower wage workers, 50 is not young at all. For many of my high school friends from working class families, both of their parents were dead by age 50-60, and now (thirty years after HS graduation) quite a few of those classmates are dead too.
And by throwing out Obamacare the current Supreme Court will of course not be making this problem any better.
comrade scott's agenda of rage
@Joseph Nobles:
You can be guarandamnedteed that both of them will die while still on the bench. No way, no how, will they ever step down before then.
artem1s
@rikyrah:
yes, this.
because shorter terms has given us some many sane representatives in the House. And term limits have given us so many functional representatives on the state level! /snark
and really, do you want to go through nominating a whole freaking court every 5-10 years? Isn’t the non stop presidential campaign enough masochism for the country to endure?
Term limits do NOT work out the way glibitarians think they will. It does nothing for keeping the representative independent. It only makes them MORE accountable to those who can afford to BUY the next appointment or campaign.
And WHY, oh WHY, are people so eager to give up their constitutional right to petition the government and vote for the candidates of their choice? When you eliminate all of the candidates previously elected/appointed AND TRAINED to do a decent job, you give up the right to VOTE for a decent candidate (or have a decent appointee). Supporting term limits is just a way of saying you think Herman Cain should be allowed to hold high office but Hillary Clinton or Sherrod Brown shouldn’t.
If people want to waste their votes on grifters like Ron Paul who claim to be Washington outsiders that is fine by me. But I demand to retain my right to vote for the best candidate possible if they are willing to run. And if someone is willing to serve they should be allowed to do the job and not have to spend all their time trying to work around obfuscating, government hating wingnuts.
Term limits are BAD. yes, we are stuck with Thomas and Scalia and Alito for life but that’s because of the idiots who didn’t think voting for small government grifters would matter all that much.
the solution to this court is making sure President Obama makes those appointments for the next four years and not Mitt Romney.
mary
I agree with Marty. Anyone in their fifties doing physical work (including just standing on their feet all day)is living with constant discomfort if not pain. I know there are probably exceptions, but believe me, they are ‘exceptions’. That is why the idea of raising the Social Security and Medicare age is so offensive. And the fact that pundits seem oblivious to this does make it a class issue.
Cacti
@mary:
And add to that the fact that someone doing physical labor has probably worked non-stop since their teens, and didn’t take a 4-7 year education detour into the workforce, so by age 50, they’ve spent close to 2/3 of their life at their job.
eemom
@Steve:
Exactement. You know, if last week did nothing else it sure did smoke out the bona fides of the various Courteratti that drive the emmessemm narrative.
Enough has been said already about Trollbin. I did some research on Goldstein — he’s a third-rate lawyer and self-made hack, who — to his credit I suppose — did manage to build a gazillion dollar boutique practice out of ambition and opportunism.
Amanda in the South Bay
@artem1s:
Meh, I’m as left as you can get, and I think term limits (especially for Federal judges ) is a great idea.
We’re stuck with piss-poor judges for life (as well as a lot of congresspeople) because of the lack of term limits. As it stands now, there are no checks and balances on the judiciary. Name one.
Heckofa Constitution there judicial branch.
Amanda in the South Bay
Supreme Court justices are a different thing than ordinary Federal judges-yeah, I get the GOP has been obstructing them, but when it came time for Sotomayor and Kagan, there wasn’t real obstruction. Hence I share by disbelief that at least Ginsburg didn’t retire from 2009-2011. It’d have been a relative cakewalk, as we’d be replacing a liberal with a liberal, so not a lot of Senate drama.
gene108
@honus:
Sure they could be nominated.
The key is they need to be over 18 years old, because minors can’t legally enter into contracts, so I would assume they can’t be handing out Supreme Court decisions.
The neat thing about Thomas is you basically remove the presumption justices need to cross-examine those testifying before the Court to reach a conclusion.
We could have 9-silent justices.
What would be cool about an 18 y.o. Supreme Court judge would be the fact he/she would probably be on Twitter and Facebook DURING a hearing, so we’d get real-time updates on the proceedings.
Martin
Well, the lifetime tenure business isn’t exactly spelled out as such. The Constitution says:
Which is where we take the interpretation that ‘good behavior’ means ‘not impeached by Congress’. I suppose a sufficiently motivated Congress could adopt a different meaning as proposed by the President. I think that’s extraordinarily unlikely, but it’s not impossible. It could be something as simple as the President propose a replacement for a member of the Court (for any reason at all) and Congress simply confirm that member. Call it a quiet impeachment, but all the advice and content necessary is there and it would conform just as equally to the Constitution as the current mechanisms do. In the same way that there are unwritten rules about confirmation (no filibuster, no longer recess appts) there could be unwritten rules about what would be suitable to Congress when proposing replacements.
It could be that any President can offer a perfunctory replacement for any justice appointed by a prior president of the same party (Obama could ask to replace any of Clinton’s justices without additional justification – and yes, I’m aware of how many of the liberal justices were appointed by Republicans) or after a certain period of time on the bench (20 years, given most Justices are appointed around age 50, it would give them to 70). Those would be politically neutral in their proposal. More contentious would be replacements due to health or performance. For example, is it really appropriate that a justice not utter a word for 6 years? Or that they take clear political positions during proceedings? Or that they cheat on your taxes by not reporting their wife’s income?
Given how hard such trivial things like rational filibuster rules are to get enacted, I’m hardly holding my breath here, but technically I think it would be possible to get some kind of reform in.
Of course, I’m not so pessimistic about the court as most here either.
Martin
@gene108:
After the broccoli arguments, that is sounding more and more appealing.
ThatLeftTurnInABQ
@comrade scott’s agenda of rage:
Since Thomas never asks any questions during oral arguments, I don’t think we can rule out a Weekend at Bernie’s scenario in his case.
sparky
it seems to me that term limits for judges and justices is the wrong prescription; it’s rather like giving aspirin to a person with indigestion. the problem is not with holding office during good behavior but rather with the appointment process and the people who emerge from that process. why not start by fixing that end, rather than grafting on a fix that does nothing to solve the original problem? for example, given the number of lawyers in this country, there are plenty of people who could be nominated but are not. a broader pool of nominees would help to kill the current conventional wisdom that a nominee must be a blank slate.
incidentally, the Court has always been political; one need look no further than Marbury or Dred Scott for proof.
burnspbesq
@honus:
The second sentence does not logically follow from the first. “Eligible” and “qualified” are not synonyms.
Elie
@Amanda in the South Bay:
The original reason for the lifelong term was to place them above the narrow immediate political concerns of the day. Unfortunately, when appointees are made who explicitly hold to overt partisanship, you are stuck.. Its also very hard to test for that in the approval process. IMHO, if we shortened their terms, we would be more likely, not less, to get short term political operatives. The short answer is that there is no technique we can apply to the judicial selection process that ensures impartial, competent Supreme court justices. We hope to select experienced and outstanding jurists — but that is the best we can do…
Martin
@burnspbesq: I think if you asked most Republicans, they’d argue strongly that Tebow was more qualified than at least 4 current justices.
Some Loser
@Amanda in the South Bay:
We can kick judges out of the Supreme Court if they are not behaving (whatever that means legally). I heard the few times Supreme Court justices are removed from office it had to do with bribery, and the Judiciary Act of SomeYearIDon’tRemember dictates that judges can be removed if they are senile. So there’s that.
And, personally, I don’t quite understand term limits. If an elected/appointed official is doing well, why can’t we continuously elect them? If no stronger candidate comes, I’d be happy to keep my otherwise fine representative. Though, I am in support of limiting the judge’s term length from lifetime tenure. Shorten it to 16 or 20 years, so the president and congress can re-appoint good justices and get rid of bad ones. And with unlimited term, we can continue with the good justices indefinitely (Though, a two term justice would be looking at 32 or 40 years of serving).
catclub
@Linda Featheringill: “Hell, we don’t even have a republic.”
It is like Ben Franklin told the lady in 1776: “A republic, if you can keep it.”
ETA: well, I wrote 1776 but it should be 1789, right?
LongHairedWeirdo
Yeah, those people with health issues are really horrible, aren’t they? And some of them take up good parking spaces too!
Rafer Janders
@Yevgraf:
As someone whose mother regularly had to crawl under the car to check for explosives in the morning, and who regularly fielded phone calls to our house threatening to kidnap me and my brother from middle school, I can attest that this is indeed the case. It’s an unpleasant way to grow up, and I don’t really wish it on people.
Ozymandias, King of Ants
Way to go with the ableism!
You’re are a fucking cowardly douchebag.
Michele C
@Cacti: I do not understand how he is still alive–he must have the same deal that keeps Cheney going. I’ve been hoping he’d die of a heart attack for decades already!
Justin
Everything about this story is misleading. Including the reality the kid attacked Zimmerman and Zimmerman was defending himself. If Obama had a son he would look like Tyrone Woodfork. But that won’t get him votes. Yep, last week, in Tulsa, Oklahoma, a black teen named Tyrone Woodfork severely beat an elderly couple. The couple had been married for 65 years. Media reports failed to mention the race of Woodford (black) and the victims (white). Obama could give a damn about Trevon Martin or his family. He’s just using them. Obama is a colossal opportunist. He grabs any opportunity for being in spotlight. Disgusting how Obama uses people in their times of crisis to further himself. Typical narcissiitic personality disorder. Oh, and Obama is white. Or is he a black white? Or white black? See how silly this all is. If we really were NOT judging people by their skin we would never have labeled Obama the first BLACK president. Obama’s black roots aren’t even in America anyway. What a joke this all is. We may as well elect Nancy Grace.