Thursday, June 30, 2005

Peggy, Stu, Get Married... the idea that lifetime appointments might be something of a problem. Ladies first:

The Supreme Court this week and last issued many rulings, and though they were on different issues the decisions themselves had at least one thing in common: They seemed to reflect a lack of basic human modesty on the part of many of the justices. Many are famously very old, and they have been together as a court for a very long time. One wonders if they have lost all understanding of how privileged they are to have lifetime sinecures of power and authority. Do they have any sense anymore of common human wisdom, of the normal human arrangements by which Americans live?

Stuart Taylor Jr, offers solutions:

... modern medicine -- and modern justices' fondness for their power and glory -- transformed the meaning of life tenure. This longevity has contributed to some serious problems, according to an ideologically diverse group of 45 leading legal scholars, several of whom are publishing law review articles on the subject. Earlier this year, these scholars agreed "in principle" on a proposal that seems especially timely now: staggered, 18-year term limits for all future justices, to marry judicial independence with more frequent and regular injections of new blood by the president and the Senate.

....Some justices have remained on the Court until mentally debilitated or, at best, long past their prime. There will be more, given our increasing ability to keep people alive long past the point of mental incompetence. ....

If power corrupts, life-tenured power corrupts more completely. ....

....Quasi-monarchical judicial tenure makes it less likely that turnover will lead to reconsideration of erroneous or unpopular constitutional rulings. This feeds doubts about the legitimacy of those rulings among voters and elected officials who feel disenfranchised. ....

The 18-year term-limit proposal advocated by Carrington, Cramton, and more than 40 other scholars would provide for a new appointment every two years, or two in every presidential term. After a complex phase-in period, to avoid suspicions that this is a plot to oust current justices, each new appointee would bump the Court's longest-serving member down to "senior justice," with no power to participate in Supreme Court cases except in the event of a temporary vacancy.

.... The odds of justices suffering severe loss of mental capacity in office would decline dramatically. The odds that they would settle into autopilot, complacency, or diminished productivity, or would lose touch with the temper of the times would decline substantially. And the guarantee of a new appointment every two years would greatly enhance democratic accountability while lowering the stakes in each confirmation battle.

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