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End Lifetime Appointments

By Steven Hill, Pacific News Service. Posted August 9, 2005.


Vicious battles over Supreme Court nominees could be avoided with term limits and mandatory retirement ages. Why should senators representing a minority of U.S. voters confirm a justice for life?

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Should U.S. Supreme Court justices serve life terms? The question is raised whenever there is a vacancy on the Court. At 50 years of age, Judge John Roberts -- President Bush's Supreme Court nominee -- could serve for decades.

Perhaps more than any single factor, this "until death do we part" constitutional requirement has been responsible for bruising confirmation battles. On the partisan chessboard, nailing down one of nine Supreme Court spots is a major victory.

But a survey of judicial appointment practices in other democracies suggests there may be better methods for selecting the U.S. Supreme Court. For instance, some democracies employ judicial term limits. High court justices in Germany are limited to a 12-year term, and in France, Italy and Spain, a 9-year term.

There's American precedent for judicial term limits, with judges on the U.S. Court of Federal Claims limited to 15-year terms. Also, members of the Federal Reserve Board, shielded from politics because they oversee the nation's economy, serve 14-year terms, with their Chairman Alan Greenspan appointed for a four-year term.

Some nations require that high court justices retire at a certain age. In Israel and Australia that age is 70; in Canada it's 75. A few American states also have established a retirement age for judges: 70 years in Minnesota and Missouri. If that age limit were applied to the current Supreme Court, three justices would have retired already, with two more stepping down next year.

Interestingly, for America's first 20 years Supreme Court justices averaged 13 years in service. But between 1989 and 2000, the average term for Supreme Court justices doubled, to about 26 years. Two current justices have been on the high court for more than 30 years, including the Chief Justice. In recent years, the average retirement age has risen from 67.6 years to 78.8 years, according to Northwestern University law professors Steven Calabresi and James Lindgren.

Beyond judicial term limits and a mandatory retirement age, it's also worth considering multiple appointing authorities. In France, Germany and Italy, no single person or institution has a monopoly on appointments to the constitutional court. In Spain, four judges are appointed by the upper-house, four by the lower house, two by the government, and two by a Judges Council.

Bipartisan appointments also hold promise. The Senate might review only nominees proposed through a bipartisan selection procedure. As a step in that direction, one option is to require a confirmation vote of 60 Senators instead of a simple majority. Since no one party usually would have 60 votes that would nudge the parties towards bipartisan consensus.

Requiring 60 votes also would be an acknowledgement of how distorted is representation in the U.S Senate. Out of 100 senators, only 14 are women and five are racial minorities. But they aren't the only constituencies underrepresented in the Senate.

According to Professor Matthew Shugart of the University of California-San Diego, for the past three election cycles more than 200 million votes were cast in races electing our 100 senators. Republicans won 46.8 percent of the votes in these elections -- not a majority. The Democrats won more votes, 48.4 percent. Yet the GOP currently holds a lopsided 55 to 44 majority. In 2004, Democratic senatorial candidates won over 51 percent of the votes cast, yet Republicans won 19 of 34 (56 percent) contested seats. So the minority party holds a majority of Senate seats.

This GOP over-representation is due to Republican success in low-population, conservative states in the West and South that are given the same representation -- two senators per state -- as high-population states like California. The 52 senators confirming Clarence Thomas in 1991 represented only 48.6 percent of the nation's population, showing that senators representing a minority of voters can confirm a justice for life. A body as unrepresentative as the United States Senate should not be confirming lifetime appointments, especially by simple majority vote.

Defenders of the status quo undoubtedly will view any tampering as an assault on judicial independence. But the bitter partisanship of the current process has deeply undercut all notions of justice and fairness.

Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing and confirming authorities would help to decrease the politicization, create a modest amount of turnover and ensure that one party doesn't monopolize the process. In these times of extreme partisan polarization, that would be good for America.

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Steven Hill is an Irvine Senior Fellow with the New America Foundation, and author of Fixing Elections: The Failure of America's Winner Take All Politics.

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I competely disagree
Posted by: blackavenger3 on Aug 9, 2005 5:18 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
I think the majority party as elected by the people should nominate the judges. this is just another attempt by people who lost the election to dictate supreme court nominations.
this process has worked for 200 years and should be left alone. liberals want to select the judges because they absolutely cannot win at the ballot boxes(even when they cheat)
I also dont believe in a super majority because its in violation of the constitution(which is not a living document)
So no, I disagree with this article and I think that republicans absolutely should not back down to liberal congressmen, and senators. The losers dont dictate who the nominations to the supreme court will be. The people elected republicans to power and no amount of protesting by liberals will change that.
as far as partisanship goes, liberals have declared war on America by becoming a Michael Moore buffet of anti-americanism.
well have a great day!!!!!

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» RE: I competely disagree Posted by: endless
» RE: I competely disagree Posted by: SaraO
» RE: I competely disagree Posted by: spaghetti happens
» RE: I competely disagree Posted by: brucem
Great Article
Posted by: endless on Aug 9, 2005 5:51 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Fantastic points regarding limits and ways we could maintain a sense of balance in an otherwise unbalanced system. Looking at this from either side of the political fence it seems to just make sense to have some limits. Especially on the age issue right? What happens as people start living older and older are we going to have justices who are over 100? That would be a bit ridiculous. I think you've brought to light some great talking points here. There's no way any of this would pass in today's environment but perhaps in the hopefully not too distant future some of it could.

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another red herring
Posted by: abilkhayr on Aug 9, 2005 6:31 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
it seems to me that instituting term limits would simply lead to those who view a seat on the court as a partisan position planning their hot-burtton lawsuits in sync with the retirement dates of the justices. in other words, it just changes the focus of the game.

the culprit here, i think, is in treating the courts in general, and the Supreme Court in particular, as a partisan prize. there is a beauty in pure study of the law, and I have great admiration for justices who have sought to deliver judgments based on fine legal principles. a sort of extension of the wisdom of solomon, you might say.

the bottom line should be that a justice is meant to serve a higher ideal than whichever political party the president is a part of. it should not be a partisan victory, it should be a victory for all of us. we should respect the need for balance in our society by reflecting it in the court.

it is patently obvious that mr bush and his cronies have chosen someone they believe they can predict and, perhaps, control. what comes to mind when i think of john roberts is the film the stepford wives.

i believe it would be honorable to oppose the nomination of roberts simply on the basis that is the wrong choice for our time. our country would be healthier if our senators would actually debate the issues that such a principled stance would unveil.

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'Distorted' Representation?
Posted by: Sojourner on Aug 9, 2005 9:49 AM   
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The issue is not addressed by statistics about population size, gender or racial constituencies. Yes, one issue is special interests, but treating gender or race as a special interest is highly problematic.

I find nothing in this article helpful, except the general information that government is run differently elsewhere. I see no evidence that any of those 'elsewheres' gets better results.

His argument about statistical representation would be proved through a demonstration that the House governs 'better' than the Senate. That is not my perception. And if the case can be made that the Senate's job is for each member to represent the interests of the nation as a whole, then measuring it by any standard of 'special interests' does not apply.

The problem I see is that a system designed for amateurs has become professionalized. All elected officials now must depend on lobbyists for information. The wealth in the economy of the US requires decisions about vast sums of money. Telling elected representatives how to spend that money is the lobbyist's job. If governing is difficult for elected officials, and it is, how much more so is it for voters to understand?

What the writers of the Constitution could assume is that with 12 original states in an agricultural economy, voters might personally take the measure of a candidate. One need only look at local non-partisan politics today to see how unpredictable that is.

But the knee-jerk corporate-style response that somehow a 'reorganization' will improve things has never worked in my experience.

The error is to assume that our present troubled political condition somehow is not 'representative.' On the contrary, we are getting what we deserve. It will not be improved by standards of more or less of anything. Only by 'better' decisions and 'better' participation by voters.

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a statistical note
Posted by: HighCarbDiet on Aug 9, 2005 11:37 AM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
"Interestingly, for America's first 20 years Supreme Court justices averaged 13 years in service..."

weren't lifespans notably shorter back then? maybe they weren't half of what they are today, but it should probably be taken into account here.

the disproportionality of the senate is an issue that affects many aspects of the democratic process, from judicial appointments, to presidential elections (the electoral college), to general legislation. isn't that just how the constitution was designed? should that structure be changed to satisfy the needs of the left (of which i am a member), or is there some sense to it?

it seems to me that the partisanship of the judicial appointment process is just another symptom of the polarization of the electorate (though i'm not even sure this polarization is more fact or fiction).

and to a previous poster, what's so ridiculous about a 100 year old justice? i'd prefer a 101 year old sandra day o'connor to a 40 year old alberto gonzalez.

if a justice does something so offensive to the public, are there no means of removing him or her? (time to dig out the constitution...)

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The Supreme Felons didn't happen by accident
Posted by: pjrsullivan on Aug 9, 2005 2:38 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
From the creation of our so called constitutional republican form of geovernment, it was basically smoke and mirrors for the mass.

Madison clearly stated that the purpose of the High Court was to provide a "Bulwark against Democratic attacks." This explains why on any truly significant issue, the court takes a powder.

Madison v Marbury was a piece of contrivance by the same gang of bandits who cooked up the original gag. In that case the court determined that it was to be the final arbitor in what was and was not legal. Here you have a clear example of a gang of old fogies and blood-suckers of all varieties trying to tell us that they are the law. None of them are elected. Get it, its all a joke, a bad joke at that.

The Supreme Felons, or Fogies if you like are nearing the end of their fraud. The gangster class knew that these times would occur, and that is why they have built the destructive power of the military to what it is today. A baby killing planetary threat to our continued existence.

The only value that happened at the creation of this political operating system was the Bill of Rights, and that was created to protect the gangster class against the mass after they saw what was going down in France. Many ordinary Americans then thought that the Bill of Rights was for them. This lying thieving gang of criminals have said to the American people what the earlier Supreme court said to black people.

That court said earlier that the black man had no rights that a white man had to respect. Our current criminal court appointed our felon in chief, and he has said that the American people have no rights that the gangster class has to respect.

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a time to go home
Posted by: john henry on Aug 9, 2005 6:45 PM   
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these lawers an judges that have done a good job in there life time after 30 or40 years of services should go home not higher up this should be for young men an women an should be for a short time of 8 or 10 years an no more for a good person an knows the laws the bible for this is where all of our bases law came from

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Denny034
Posted by: Denny034 on Aug 9, 2005 8:20 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
When the Supreme Court was first formed, it was assumed that the decisions were to be the work of the justices themselves. That has NOT been the case. After a few years, the court was granted two clerks per justice. That number has grown to where now there are at least four clerks per justice. The aged justices have been lazy and have been giving to the clerks the research, the rationality, and even the writing of the opinions that the justices are presenting as their own work. They are not doing the job they were appointed to do. Age is a major factor in this problem. The Roe v. Wade opinion was not written by Blackmun!, and others also were not written by the justices but by their clerks who are not appointed, not known and not accountable for their actions. This country is being taken over by the bureaucracy and the Supreme Court is no exception. The worst mistake that this country ever made was to institute civil service. We now have a union of burearcrats who are not about to give up their power. The Senators do not write the bills, they do not read the bills, they are told by their staffs how to vote on the bills. Over 60% of the members of the Senate are lawschool graduates. This datum is from the Capital Contacts publication by the Washington Times. The publication has small biographical sketches that give the training of the senators among other items. On the other hand, the House is only 37% law school graduates and thus, it is no wonder that the liberal slant of the Senate is noticably greater than that of the House. We need to stop electing lawyers to public office, especially the Senate, and control the "lawyer culture" that exists in Washington D.C. If the control of the government of the United States is the aim of any group, Marxist, liberal, ultraconservtive, you name it, then it is only necessary to control the faculty of the limited number of law schools in the United States. One hunded men in the Senate can stop any legislation that does not meet their liberal slant. In fact, it does not take one hundred men, it only takes about 60 men. It is no accident that the 60 vote supermajority has been instituted in the Senate. The Capital Contacts publication gives the law schools from which the senators graduated. Most are from Harvard, Yale, Georgetown, Stanford and a few others. Can we really expect to see law school graduates from these schools have a fair world view balance.

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Denny034
Posted by: Denny034 on Aug 9, 2005 8:34 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
The use of a supermajority in the Senate is just a stopgap method of trying to control the Supreme Court and the Federal Judicary, that is out of control. I would like to see, not a Senate supermajority in the confirmation process, but a super majority required for a Supreme Court Opinion to have any meaning. That is, a 5/4 decision is no decision at all! The 5/4 decisions are placing ALL the power in ONE justice and that is not wise. At least a 6/3 decision should be required to make a decision binding. A 5/4 decision, at present , means that the Supreme Court does not know what the best decision is and thus, the 5/4 decision is useless. All of the worst decisions in recent times have been by 5/4 votes and no one can believe that the Supreme Court knows what they are doing. The Founding Fathers tried to insulate the Supreme Court from outside influences, but when a 5/4 decision is expected, the pressures from the Abortion Rights group, the Trial Lawyers group, the burearcracy unions are fierce. We can do better.

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You should learn your history
Posted by: popsicle67 on Aug 20, 2005 11:35 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
The reason behind lifetime appointments was so the justices would be beholden to none and presumably rule on a matter's
constitutionality, not on the basis of any quid pro quo. Now I know it just barks your shins that you can't control the court right now but this system was set up the way it is so people could change what they didn't like in this nation. All you need to get enough people to vote with you. That you can't do this is not evidence of any corruption of the system, it is a reflection of just how much people don't like you.Get over it!!!! Find something better to worry about like finding relevency for your obviously miserable lonely existence. Advocating for a new law to address a problem that already has several laws offering remedy is the apex of absurdity.
What we need is more people to stop whining about the inequities that they imagine in our system of government and
learn to use it properly.

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And Furthermore
Posted by: popsicle67 on Aug 20, 2005 11:42 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
I didn't hear all this furor when President Clinton was naming
his appointees. Why is it that we need to change the rules for
a Republican.

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Elect Supreme Court Judges
Posted by: RayP on Aug 22, 2005 11:53 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
Why can't the Supreme Court Judges be elected, just like other government officials? There is nothing different about them than other people in government.

At the state and local level, you have elected judges, why not at the national level as well?

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If this was a Democratic Administration
Posted by: bookwoman on Aug 26, 2005 1:03 PM   
Current rating: Not yet rated    [1 = poor; 5 = excellent]
As much as I don't like George Bush, his Administration and the Conservative Right, you don't change rules in the middle of the race.

If this was a Democratic President, it would be the Conservatives who would be complaining about whomever was nominated. FDR was a hero in our family in spite of our having a moderate to conservative bent to our politics. However, his attempt to increase the number of justices sitting on the Court to get his legislation approved was also wrong.

The way we run the Supreme Court has worked so far, and I don't think we should be thinking about changing it now.

I don't know what kind of justice John Roberts will turn out to be. No one ever knows. It has seemed, over history, that something takes hold of people when they take their place on the Supreme Court bench. Think for instance of such situations as Earl Warren, a conservative Republican organizing the verdict on Brown vs Topeka BOE or Republican Harry Blackmun writing the decision on Roe vs Wade or the overall moderate decisions written by Sandra Day O'Connor. I have just finished reading "Amistad" wherein the words "We are free because our courts are free" is put into the mouth of one of the characters. The Amistad case in itself shows how no one can predict what a court will do. In 1840, the Taney Court ruled eight out of nine against slavery even when seven out of nine of the justices owned slaves. Seventeen years later, the decision on the Dred Scott Case was very different. Go figure, and, in the meantime, let's leave the Supreme Court alone even when the appointed justices are not the people we ourselves might choose.

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