No More Supreme Picks for Bush?
According to Roger Alford at Opinio Juris, Jan Crawford Greenburg does not believe there will be another Supreme Court opening while President Bush is in office. Speaking at Pepperdine, Greenburg commented that, based upon the interviews she conducted for her book, neither Justice Stevens nor Justice Ginsburg appears ready to retire. Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."
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- No More Supreme Picks for Bush?
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Isn't Stevens like 86 or something? Saying that Stevens won't retire is one thing; saying there won't be an opening is another. Of course, I hear Stevens still plays tennis, so sounds like there are no signs of slowing down, but you never know.
Sounds a bit like fighting for democracy in Iraq.
Incidentally, what is the legal procedure to remove a judge who is alive, but either unconscious or has some other medical condition that makes him or her, and as such, physically unable to perform?
(Impeachment would be the only actual way, but I wonder if that would seem unseemly, since most people associate that with accusations of wrongdoing.)
I think both sides would prefer to take their chances on winning the next presidential race.
This would make the race really interesting, as a SCOTUS pick would be visibly on the line! (All the scary political ads would be exactly right for once.)
But being in a coma is not a “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article II, Section 4 of the Constitution. Of course when the constitution was written, I do not think that people could be in a coma for years. I suppose that had that been a possibility, they might have added that the impeachment process could be used for medical reasons, but that’s speculation.
Then when the comatose Justice finally died, Congress would eliminate the position.
Congress might increase the number of justices if they wanted to let the President fill a seat. I don't think that would happen anytime soon.
What if the comatose Justice woke up?
Errr...he would be quietly 'taken care of'....?
Probably more like The Devil and Daniel Webster.
Although somewhat off-topic, can we widen this a bit. How about removal of judges who are simply, as the British say, past it?
I just yesterday was speaking with a partner in my firm about several superannutated judges. At one point -- say 20 years ago -- they did a highly competenet, even admirable job as federal judges. Today, however, age has taken its toll. They forget things, lose track of what is going on in the case, and generally can be very difficult and unpredictable to deal with.
I once appeared before one in a case in which we had engaged in about six months of discovery. The case was set down for trial in two months, and we had a pre-trial conference with the Judge. Our client wanted an extension of time for more discovery, but I was sure the Judge would say, no, you've had enough, the case is going to trial. The lawyers sat around the table about to discuss the extension, when the Judge says, "So you're starting the case? That means you'll want six months for discovery, right?"
Anyone have similar experiences?
Any suggestions how to weed out the senile without compromising judicial independece? The only way I see is to impose mandatory retirement at an arbitrary age (e.g. 75).
Kennedy has already made it quite clear that he has no soul.
I am all for a mandatory retirement age. (of course it will take a constitutional amendment and it will never happen.) Any attempt to make individualized evaluations of Judges’ mental capacity is bound to be adversarial with endless charges of partisanship.
Of course there are no allegations of senility on the part of Stevens, but there have been such allegations as to Supreme Court Justices in the past.
Looking at the careers of long-tenured Justices, few made their most important contributions late in their tenures, and we wouldn't have lost much if they had retired after 20. The only exception I can think of is Chief Justice Rehnquist. We could make elevation to Chief a separate term.
This is an interesting point, but as a practical matter they would have to think about impeachment, or perhaps some statutory scheme that provides for automatic retirement for judges who become irrevocably incapacitated and are thus unable to comprehend their surroundings. Wasn't the first impeachment of a federal judge because the guy was a drunk who lost it? Posner's book about the Clinton impeachment debacle posed an example of a president who decided to move to Saudi Arabia so he could have two wives, and do his job by phone and email; that is no crime at all but such a president would have to be impeached.
As for mandatory retirement ages: I am all for that. Judge Manuel Real is an unfortunate example in support of them . . .
Presumably, a judge might act without "good behaviour" without commiting a crime. For example, a judge decides he will hear one case a year (say a one day bench trial), and otherwise he will adjourn to the golf course for the other 364 days. That seems to me a basis for terminating his tenure.
Same thing should apply to a comatose judge -- his failure to fulfill his job is a lack of "good behavior" in his "Office."
Only problem is, other than impeachment, there seems to be no mechanism for such removal.
Note that I did not endorse mandatory retirement ages at all. I suggested a single 20-year term. Further, I did not suggest an exception by ideology but rather that elevation to chief justice be considered separately.
High opinions of William Rehnquist as Chief Justice are not limited to conservatives. Thurgood Marshall thought he was a great Chief Justice, according to Juan Williams.
Presumably the terms would also be staggered, so that barring untimely demise, there would be a consistent number of appointments per presidency.
I used not to like that idea, but it has some appeal.
The Senate wound up convicting Pickering and removing him from office (I believe on a party-line vote, but I'm not certain).
In 1804, Supreme Court Justice Samuel Chase was impeached for "political bias," but the Senate acquitted him.
A lot of this is detailed in Bruce Ackerman's excellent 2005 book "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy" (among other places, I'm sure).
Actually, you said this:
Looking at the careers of long-tenured Justices, few made their most important contributions late in their tenures, and we wouldn't have lost much if they had retired after 20. The only exception I can think of is Chief Justice Rehnquist.
Which, strangely, looks different from what you said you said:
Chief Justice Rehnquist made important contributions to the Court during his tenure as Chief Justice which were different from what he accomplished during his time as an associate justice.
The Contract Clause states, “No State shall ... pass any ... Law impairing the Obligation of Contracts.” It does not limit the rights of the federal government. And if it does, what’s the problem? A constitutional amendment can “violate” a constitutional provision, that’s exactly what the amendment process is for.
William Brennan's departure in 1976 would indeed have been a good thing. The others had made their most important contributions prior to the dates mentioned. If President Eisenhower had a couple more appointments, Henry Friendly might have made it, which would have been a very good thing.
How could a constitutional amendment possibly "violate" an existing constitutional provision? The whole purpose of amendments is to change existing provisions.
Yes I agree. Brain fart on my part.
How could a constitutional amendment possibly "violate" an existing constitutional provision? The whole purpose of amendments is to change existing provisions.
As I said to VFBVB, "violate" was an extraordinarily poor verb choice on my part.
If such an amendment went through, though, would we want to extend it to the Circuit Courts as well? And if we did, would we lose the expertise of someone like Alex Kozinski, who was appointed to the 9th Circuit 22 years ago at age 35?
I suggest 18 years - each position is numbered and has a full term of 18 years. Every two years, one position is "up" and the justice retires. A very regular succession, every president nominates some justices, no..."rush hours"...no "hanging around until the right party controls things."
If a justice dies in office, the nomination is for the rest of his term.
See e.g., how the Senate was started out.
At the beginning, after the mythical amendment is passed in our fantasy, the positions are numbered 1 to 9 based on some objective criteria - number of of years on the court at passage, age at passage, lots. The terms would expire on July 31 of the odd or even years, determined by the first July 31 after ratification The term for position 1 would be "up" on that first odd or even year. If ratified in 2135, all terms would end on July 31 of even years, and position 1 would have a new justice August 1, 2136.
LOL Go John Paul, go. Im not sure Kennedy even needs it though, he seems pretty liberal to me.
This doesnt surprise me. Stevens knows how much of an impact him leaving the court would have on its ideological makeup. He knows how much conservatives want to see him retire too. I wont repeat the vile remark Ann Coulter made.
Same goes for Ginsburg. Theyd have to carry her off on a strectcher for Bush to get the chance to fill her seat.
Im glad to hear that Stevens has Kennedy's ear. Thats good news. I hope he's talking to Alito too.