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.

 

[wardorican]

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 agree. It doesn't hurt to study it though.

What about expanding the federal districts or adding judges there? It seems like the federal courts are over burdened.

 

[insidejob]

Schumer told republicans yesterday before the vote pretty much to not come crying if/when democrats control the Senate and do whatever the hell they want like the republicans have been doing.

It's also kind of screwed up that the majority of justices sitting on the SC were put there by presidents that lost the popular vote - so I don't really care if they expand the court, move judges all over the place, etc.. All's fair in love and war, and this has been war for quite some time now.

 

[Mr. Blue Sky]

EXPAND. THE. COURT.



(but first win the election in a landslide.)

 

[FullMonte]

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

Couldn't the argument be made that by being appointed as federal judges, they've already had an individual confirmation?

I've said for a while I think this idea has some merit. What I'd like to see is a new panel of Supreme Court justices picked every two years (or one, or three, or whatever term) randomly from the current pool of federal judges. The pool could even be weighted so that as judges get more experience, they are more likely to be picked.

 

[LA - L.A.]

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.

Would you have this same view if the courts had been packed by a minority of the population elected "socialist" contingent majority in the Senate with judges that were likely to take away private ownership rights?

It's unsurprising that one would think we should avoid a so-called "visceral response" to what McConnell and the Republicans have done if one finds themselves mostly in agreement with McConnell and the Republicans ideologies and not perceiving their own personal rights at risk of being taken away.

Anyone who is not a white, heterosexual, Christian male has legitimate and rational reasons to want to do something to change the make up of the current court, "visceral response" or not.

 

[superchuck500]

Would you have this same view if the courts had been packed by a minority of the population elected "socialist" contingent majority in the Senate with judges that were likely to take away private ownership rights?

It's unsurprising that one would think we should avoid a so-called "visceral response" to what McConnell and the Republicans have done if one finds themselves mostly in agreement with McConnell and the Republicans ideologies and not perceiving their own personal rights at risk of being taken away.

Anyone who is not a white, heterosexual, Christian male has legitimate and rational reasons to want to do something to change the make up of the current court, "visceral response" or not.

There’s no such thing as a socialist Supreme Court likely to take away private ownership rights. There’s no possible constitutional basis that would allow it to exist. That would be like saying “would you feel the same way if the courts had been packed with monarchists likely to install a royal family”?

But I’m not at all saying the compulsion to react is misplaced - I don’t mean in the least to suggest that the anger and frustration are overstated. My comment is more to a long-term strategy choice of what is most effective. We don’t know what this Court is going to do on those issues the people are presuming will be impacted. State decisis is a real thing and the Court isn’t always as agenda-driven as people believe (it is law-driven). It’s similarly unclear whether expanding the Court would solve this problem that people are expecting to have (but which remains hypothetical). And it won’t address volume of district and circuit court judges Trump installed.

It may, I’m supposing, be more impactful to come at it with a strong legislative agenda. Some of the most important and long-lasting progressive influence on life in America has come from legislation. And if carefully-tailored, it can mitigate risk of criticism from the Court.

Packing the Court is actually easy - pass a statute (it could be one sentence) at both houses and have the president sign it. Tee up hearings and a few weeks later you’ve packed the Court. Done!

But we have refused to do that during most of our national history and I think it’s in part because structural change often comes with consequences that aren’t fully anticipated. I could be wrong and we’re about to see an agenda-driven conservative Court - my wife always tells me I’m naive. But there’s always the option to take action then. I don’t think I agree with the demand to commit to the action, now.

 

[V Chip]

I could be wrong and we’re about to see an agenda-driven conservative Court - my wife always tells me I’m naive.

I'm absolutely certain it will be. Gorsuch seems even-handed albeit conservative, but Kavanaugh and Barrett seem overtly political and very activist jurists based on past decisions and speeches. It's ironic that conservatives used to complain about activist judges in the past but that is exactly what they have been approving to federal courts and now the SC.

 

[LA - L.A.]

There’s no such thing as a socialist Supreme Court likely to take away private ownership rights. There’s no possible constitutional basis that would allow it to exist. That would be like saying “would you feel the same way if the courts had been packed with monarchists likely to install a royal family”?

But I’m not at all saying the compulsion to react is misplaced - I don’t mean in the least to suggest that the anger and frustration are overstated. My comment is more to a long-term strategy choice of what is most effective. We don’t know what this Court is going to do on those issues the people are presuming will be impacted. State decisis is a real thing and the Court isn’t always as agenda-driven as people believe (it is law-driven). It’s similarly unclear whether expanding the Court would solve this problem that people are expecting to have (but which remains hypothetical). And it won’t address volume of district and circuit court judges Trump installed.

It may, I’m supposing, be more impactful to come at it with a strong legislative agenda. Some of the most important and long-lasting progressive influence on life in America has come from legislation. And if carefully-tailored, it can mitigate risk of criticism from the Court.

Packing the Court is actually easy - pass a statute (it could be one sentence) at both houses and have the president sign it. Tee up hearings and a few weeks later you’ve packed the Court. Done!

But we have refused to do that during most of our national history and I think it’s in part because structural change often comes with consequences that aren’t fully anticipated. I could be wrong and we’re about to see an agenda-driven conservative Court - my wife always tells me I’m naive. But there’s always the option to take action then. I don’t think I agree with the demand to commit to the action, now.

I used an unrealistic example, although don't discount how the precedence of eminent domain could easily be legally twisted to erode private ownership rights.

If this Supreme Court is agenda driven, then that Supreme Court would likely overturn any legislation that runs counter to their agenda. No matter how unsound their legal reasoning may be, the only recourse would be to impeach justices to change the makeup of the court.

I think if one looks realistically and objectively at Supreme Court rulings, majority and dissenting opinions it's clear that the law can be interpreted in a way to justify any desired outcome. The Supreme Court has overturned previous rulings before. What changed? It wasn't the law, it was the people interpreting the law.

After the election has been certified, I'll explain the full strategy of congressional reforms that I think would be the most effective, long lasting approach to preventing a minority from ever having disproportion control over the federal government again. It wouldn't require any constitutional amendments, but it would include congressional changes to the structure of the federal and Supreme Courts.

 

[DaveXA]

I used an unrealistic example, although don't discount how the precedence of eminent domain could easily be legally twisted to erode private ownership rights.

If this Supreme Court is agenda driven, then that Supreme Court would likely overturn any legislation that runs counter to their agenda. No matter how unsound their legal reasoning may be, the only recourse would be to impeach justices to change the makeup of the court.

I think if one looks realistically and objectively at Supreme Court rulings, majority and dissenting opinions it's clear that the law can be interpreted in a way to justify any desired outcome. The Supreme Court has overturned previous rulings before. What changed? It wasn't the law, it was the people interpreting the law.

After the election has been certified, I'll explain the full strategy of congressional reforms that I think would be the most effective, long lasting approach to preventing a minority from ever having disproportion control over the federal government again. It wouldn't require any constitutional amendments, but it would include congressional changes to the structure of the federal and Supreme Courts.

I would say they do overturn previous rulings, but the reasons for overturning are rarely arbitrary. A lot of these overturning of previous decisions are related to either the law changing, or laws conflicting. Court rulings aren't made in a vacuum.

There are good arguments to be made for many of the rulings they've made in the past, and precedent plays a big role, but precedent isn't the end all be all of jurisprudence, at least based on what I've observed in the past. There are drawbacks and advantages to every format, and I think whatever decision and direction the country decides on, there are consequences for those decisions.

I'm not convinced changing the number of justices is a good idea regardless of the breakdown in justices. I am open to the idea of appointing justices to a rotation. But, there are challenges with that, and from what I understand, there aren't enough justices to fill all of the federal court positions that are currently open. I think making big changes can have a detrimental effect on the federal courts in the short term. Longer term benefits would still be an open question, I think.

All that said, for all of the talk about it, we might see something entirely different play out. Guess we'll have to see what the actual proposals and changes are. Its an interesting discussion for sure.

 

[MT15]

I tend to think we are about to see a political, ideology driven Supreme Court. If we don’t, then Mitch McConnell will have failed miserably, and he’s not a stupid man and I don’t think he has failed.

If, and this is a big if, the democrats win the WH and get control of the Senate, they will only have a couple of years to re-balance a SC, and entire judiciary really, that is seriously out of whack. If they take a wait and see approach, I fear that they will not be in a position to do anything about it.

This isn’t a firm belief, though, and I’m not rabidly advocating for adding justices. I’m just pretty skeptical that the people who have been added (esp, Kavanaugh and Barrett) are going to be anything but political.

 

[LA - L.A.]

I tend to think we are about to see a political, ideology driven Supreme Court. If we don’t, then Mitch McConnell will have failed miserably, and he’s not a stupid man and I don’t think he has failed.

If, and this is a big if, the democrats win the WH and get control of the Senate, they will only have a couple of years to re-balance a SC, and entire judiciary really, that is seriously out of whack. If they take a wait and see approach, I fear that they will not be in a position to do anything about it.

This isn’t a firm belief, though, and I’m not rabidly advocating for adding justices. I’m just pretty skeptical that the people who have been added (esp, Kavanaugh and Barrett) are going to be anything but political.

I agree. I think one of the main goals of McConnell and Republicans stacking of the courts is to preserve and expand voter suppression and election manipulation tactics to keep giving the ever shrinking minority of Republicans more control over state and federal government than their percentage of the population justifies.