Another question for our great legal minds re: lifetime appointments (1 Viewer)

[Saint by the Bay]

The Constitution does not explicitly call for lifetime appointments for Federal Judges or the SCOTUS. Unless I'm not understanding properly, Article 3 merely states they "shall hold their offices during good behavior".

So, my question is what is the legal precedence/history that has translated that to a lifetime appointment, and is there any credible contradictory view of the lifetime appointment position? I'm sure I could do some research, but reading what you guys already know is always more enjoyable.

Edit: Referring me to reading material that clarifies this if you don't want to type a bunch is always an acceptable response.

 

[SaulGoodmanEsq]

There's a mountain of precedent interpreting "good behavior" as lifetime appointments (never mind ongoing practice since the start of the nation) coupled with contemporary writings of the time, i.e. The Federalist Papers. I don't believe it's been seriously argued otherwise nor would even the most liberal of judges make such an interpretation. TLDR: Yes, we're stuck with Amy!

 

[Saint by the Bay]

I'm less concerned with Amy specifically and more with Biden's "commission" he says he'll put together to evaluate proposals to fix the Federal judiciary. When he talked about it today he mentioned one of the things Constitutional scholars discussed was shifting people around the Federal judiciary. So your appointment would be lifetime, but you may spend time at different levels. I was curious about what the precedence to a lifetime appointment was because it seems this would fly in the face of that if your appointment is to a specific seat on the bench.

 

[Sandman]

I don’t think there is anything the commission could do by itself to change the lifetime appointment. The Constitution would need to be amended. If the commission is truly bi-partisan, it may recommend some changes to the Constitution, but it would take years to accomplish.

Personally, I would like to see a “re-vote” every 18 years (three Senate terms).

 

[SaulGoodmanEsq]

I'm less concerned with Amy specifically and more with Biden's "commission" he says he'll put together to evaluate proposals to fix the Federal judiciary. When he talked about it today he mentioned one of the things Constitutional scholars discussed was shifting people around the Federal judiciary. So your appointment would be lifetime, but you may spend time at different levels. I was curious about what the precedence to a lifetime appointment was because it seems this would fly in the face of that if your appointment is to a specific seat on the bench.

I doubt it's ever been seriously contemplated because it's such a zany idea. As you point out, judges are appointed to specific seats and confirmed to those seats. The only way they can be removed is via impeachment. IMO, Biden's commission is just window dressing that walks the tightrope of appeasing progressives while not scaring off any potential crossover Republican voters.

Getting bi-partisan support (and 2/3rds states' votes) on any amendment these days would be nearly impossible. Potentially you could advance an amendment that installs the old 60 vote requirement (to get past a filibuster) -- this would weed out hyper-partisan judges because the odds are slim any party would garner that means seats in the Senate going forward.

 

[GrandAdmiral]

I don’t think there is anything the commission could do by itself to change the lifetime appointment. The Constitution would need to be amended. If the commission is truly bi-partisan, it may recommend some changes to the Constitution, but it would take years to accomplish.

Personally, I would like to see a “re-vote” every 18 years (three Senate terms).

Not necessarily, depending on what needs to be changed. To add justices, for example, only takes a majority of Congress and the President's signature. The Constitution is quite limited on SCOTUS and the federal judiciary.

If anything needs amendment, it's the Judiciary Act of 1787. It established the federal court system.

 

[SaulGoodmanEsq]

Yep. Forgot that. Title 28 of the U.S. Code governs the number of judgeships per Circuit and District. Simple majority votes and Presidential approval could add additional seats to the lower federal courts.

 

[GrandAdmiral]

Yep. Forgot that. Title 28 of the U.S. Code governs the number of judgeships per Circuit and District. Simple majority votes and Presidential approval could add additional seats to the lower federal courts.

Hell, some will argue, with some (just some) agreement from me, that outside of Original Jurisdiction, Congress can control the type of cases the courts can hear.

I'm not completely on board with that though.

 

[SaulGoodmanEsq]

Hell, some will argue, with some (just some) agreement from me, that outside of Original Jurisdiction, Congress can control the type of cases the courts can hear.

I'm not completely on board with that though.

Definitely a lot of things are possible in theory but I expect the Democrats 'response' to McConnell's war-on-the-judiciary will be fairly measured. I can see the addition of a few more appellate and district court seats. Quite frankly, they are arguably necessary given the workload and time delays in the federal courts.

 

[zztop]

one interesting thing I read about a while back was a judge can apparently be impeached. It only happened once I think, in the 1800s, but kind of went the same way as Trump's impeachment (there must be votes in the house and senate)

 

[SaulGoodmanEsq]

one interesting thing I read about a while back was a judge can apparently be impeached. It only happened once I think, in the 1800s, but kind of went the same way as Trump's impeachment (there must be votes in the house and senate)

Impeachment is actually the only way to remove a federal judge. It's happened a few times, most recently in 2010.

Fake/real-time edit to update the last time it happened. When I was in law school the last time a a judge was impeached was Walter Nixon in 1989. Apparently it's happened two more times since then:

Impeachment in the United States - Wikipedia

en.wikipedia.org

... and goes to show you how much I pay attention to federal courts in recent years... the last guy was on the Eastern District in Louisiana!

 

[EmBeeFiveOhFour]

... and goes to show you how much I pay attention to federal courts in recent years... the last guy was on the Eastern District in Louisiana!

And Judge Porteous wasn't impeached for anything he did as a federal judge, but instead for his long time corruption as a Jefferson Parish state court judge which was uncovered in the FBI's "Operation Wrinkled Robe" (which resulted in multiple indicted judges). That was the Gretna Mentality, bra. He made the freaking U.S. Senate try him and convict him because he was already shamed and just wanted to collect those guaranteed federal paychecks for as long as possible.

 

[GrandAdmiral]

And Judge Porteous wasn't impeached for anything he did as a federal judge, but instead for his long time corruption as a Jefferson Parish state court judge which was uncovered in the FBI's "Operation Wrinkled Robe" (which resulted in multiple indicted judges). That was the Gretna Mentality, bra. He made the freaking U.S. Senate try him and convict him because he was already shamed and just wanted to collect those guaranteed federal paychecks for as long as possible.

Yep. Remember that case.

 

[zztop]

Impeachment is actually the only way to remove a federal judge. It's happened a few times, most recently in 2010.

oops, I should have said only once to a supreme court justice.
Someone named Samuel Chase in 1805
and...apparently had a strange nickname

https://www.washingtonpost.com/history/2019/09/16/only-one-supreme-court-justice-has-ever-been-impeached-his-nickname-was-old-bacon-face/

 

[Saint by the Bay]

Here’s an article about his comments. I watched live and haven’t read or followed anything about the comments other than this.

Biden raises idea of rotating Supreme Court justices: 'There is some literature among constitutional scholars'

Former Vice President Joe Biden indicated on Monday that he might be open to shifting Supreme Court justices to lower courts if elected president, noting that he hadn't made any "judgement" yet on the issue.

www.foxnews.com

“There is some literature among constitutional scholars about the possibility of going from one court to another court, not just always staying the whole time in the Supreme Court but I have made no judgement," Biden said at a campaign stop in Chester, Pennsylvania

 

[DaveXA]

Here’s an article about his comments. I watched live and haven’t read or followed anything about the comments other than this.

Biden raises idea of rotating Supreme Court justices: 'There is some literature among constitutional scholars'

Former Vice President Joe Biden indicated on Monday that he might be open to shifting Supreme Court justices to lower courts if elected president, noting that he hadn't made any "judgement" yet on the issue.

www.foxnews.com

I think it's an interesting idea and I'd probably support it in principle, but, wouldn't this make the SC even more vulnerable to politics than it already is? If we're gonna start rotating justices, then it would have to be a set rotation and if a justice does die or become incapacitated then the selection has to come from the pool of justices in the rotation. Having it well structured like this i think would create a bit more of a buffer from politics.

That said, no way the Senate would give up their power to be able to choose justices directly. I can't see them going along with that. Also, Biden can say what he wants, but he'll need Congress to do it. And it's not always smooth sailing. More often than not, they don't see eye to eye, even when one party holds all the cards.

 

[superchuck500]

Yeah, I don't see how judges/justices can be "rotated" without independent confirmations for each rotation. But I really don't know.

But I do think this reveals how reticent Biden is to say he supports expanding the Court. I'm against it, I think it comes with relatively little reward to go with relative negative implications (e.g. the prospect for additional future packing and a resulting unwieldy Court, and the more and more Congress inserts itself into the operation of the Court, the more politicized it will become, and I'm very much against that).

I think expanding the Court in response to the change in the Court's makeup from 2016 to 2020 is somewhat lazy. If the Democrats control Congress and the White House, there are several things they can do with legislation to avoid or mitigate their concerns about an overly conservative court. They could provide a statutory basis to go along with Roe v. Wade to bolster women's reproductive rights. They could amend ACA to patch weakness. They could even use language in Article I to impose meaningful, democratic standards for districting that could take the partisan sting out of gerrymandering. And if these things are done carefully and in anticipation of criticisms a conservative originalist/textualist Court may have, they could end up making long-lasting, good law.

I like that Biden is trying to push a more cautious approach after full analysis. Yes, many on the left are going to reject it as weak or unnecessarily conciliatory. But I think it's a really big deal that shouldn't be undertaken out of spite or in some kind of visceral response to feeling wronged by the power-politics of the McConnell era.

 

[Taurus]

Yeah, I don't see how judges/justices can be "rotated" without independent confirmations for each rotation. But I really don't know.

But I do think this reveals how reticent Biden is to say he supports expanding the Court. I'm against it, I think it comes with relatively little reward to go with relative negative implications (e.g. the prospect for additional future packing and a resulting unwieldy Court, and the more and more Congress inserts itself into the operation of the Court, the more politicized it will become, and I'm very much against that).

I think expanding the Court in response to the change in the Court's makeup from 2016 to 2020 is somewhat lazy. If the Democrats control Congress and the White House, there are several things they can do with legislation to avoid or mitigate their concerns about an overly conservative court. They could provide a statutory basis to go along with Roe v. Wade to bolster women's reproductive rights. They could amend ACA to patch weakness. They could even use language in Article I to impose meaningful, democratic standards for districting that could take the partisan sting out of gerrymandering. And if these things are done carefully and in anticipation of criticisms a conservative originalist/textualist Court may have, they could end up making long-lasting, good law.

I like that Biden is trying to push a more cautious approach after full analysis. Yes, many on the left are going to reject it as weak or unnecessarily conciliatory. But I think it's a really big deal that shouldn't be undertaken out of spite or in some kind of visceral response to feeling wronged by the power-politics of the McConnell era.

I'd add that's it's high time we had a law defining corporate personhood, too.