Tuesday, February 15, 2011

Supreme Clientele

Justices are appointed for life to be above the political fray, to be a crucial check to Congress and the president, who mostly are driven by the political. But the vision of justices as impartial arbiters upholding the Constitution appears to be naïvete considering several incidents in the past year. – JournalStar.com

We know that Justice Thomas is reaping financial gain from groups who want to repeal the health care law. He received financial compensation from a group who benefits from the Citizens United decision and failed to disclose other information. Yet, when asked to recuse himself from decisions, Justice Thomas time and time again has said “no.” Judges on the Supreme Court (SCOTUS) are supposed to recuse themselves sue sponte (on their own motion), unfortunately, this is on the “Honor System” and I hate to say it, but our SCOTUS is running extremely low in the honor department. If justices aren’t willing to remove themselves from decisions where they personally gain, it would be nice if the people could remove them. Sure, there is an impeachment process, but let’s be honest, in the history of the United States, only one Supreme Court Justice has ever been impeached, Samuel Chase.

Samuel Chase was impeached because it was felt his political leanings affected his court decisions. I wonder what the author of our Declaration of Independence would say about today’s Justices. Justice Chase was acquitted by the Senate and returned to the bench. Ironically, his impeachment solidified the independence of the judiciary. There have been several other unsuccessful impeachment attempts, but no matter how bad you think a judge is, it is pretty certain they will never be removed based on performance alone. They can go about their jobs with impunity, making questionable decision and potentially harming the community. For me, the worst part is knowing there isn’t a damn thing we can do about it!

We have developed more as a country, there is no reason we don’t have a more efficient, less political way of selecting a group of people that can affect our lives almost more than any politician. An unwillingness to improve a flawed system isn’t a sign of tradition or originalism; it’s a sign of ignorance. In light of our changing political environment, it may be time to revisit some of the long standing rules involving the SCOTUS. So my question is should justices have lifetime appointments?

I’m quite sure lifetime appointments had a different meaning in the 1700s when the average life span was 35 years old. That’s changed some today since the average life span being 70. So what did the framers have in mind? I’ve heard several different reasons as to why the framers of the constitution made this decision. The most popular response has to do with justices being left to do their jobs without the threat of losing their jobs. The public doesn’t vote for justices so they don’t have to worry about reflecting public opinion (see the Republican Party and Tea Party) and political pressure. In theory, this is great! I’m sure in the Utopian world that the founders envisioned for their future country, this makes sense. However, 200+ years later, we gained a level of realism that allows us to say this was a failed effort and thought process. Perhaps we should revisit it – among other things. The problem is that the justices, who have the greatest impact on our day-to-day lives, are nothing BUT political operatives. Just like the monarchs the founders tried to avoid creating during the development of the country, the justices NEVER have to answer to the people (or to anyone for that matter).

Another issue with lifetime appointments is that it gives the president power long after they’ve left office. Some even removed or voted out by the public. Should a president, whom the public votes out, still have an impact on our lives through the courts? A president gets eight years, but their judge…….FOR-EV-VER. And doesn’t the fact that the justice is appointed by the president contradict the founder’s motive of making the SCOTUS apolitical? Today, selecting a judge for the SCOTUS is more about the strategy of making sure the president’s political perspective forges future findings. Judges are nominated at a much younger age with the hope they live a long life making decisions. Even judges have taken up a strategy; forgoing retirement until a president of their political party takes office. And why wouldn’t they? Isn’t it safe to assume that the president will only select people that agree with their political agenda? We know the Senate confirmation is nothing more than a dog and pony show, so our court is full of judges split along political lines resulting in decision coming down to the opinions of one person. One, non-elected, person time and time again has to make a decision because the rest of the court is so politically divided that law itself is no longer applicable. The law is no longer a universal destination where legal minds find consensus, instead it is a political point of view cleverly crafted and hidden behind legal jargon. In my opinion, it is almost pointless to argue cases in front of the court any more. You know how the justices will vote based on what FOXNews or MSNBC has to say about the issue. Hey Republicans, you want to save taxpayers money? Do away with having the SCOTUS hear cases. Simply send an email directly to Justice Kennedy asking his opinion and be done with the damn thing. Of course, we would be kidding ourselves if we felt that no person would bring biases to the bench, but there is no reason why we couldn’t eliminate the person with a clear political agenda from the nomination process. As it stands, presidents from both parties have an incentive to appoint justices who will make sure their parties’ ideologies are reflected in court rulings and precedence for years to come. If that isn’t politics, I don’t know what is.

Term limits would also increase the likelihood of people of various races and ethnicities having representation on the courts.  It's insane to think that since inception, of the 112 Supreme Court Justices, 106 have been Caucasian men.  There has never been an Asian, Native American or Pacific Islander on the bench.  There have only been two African Americans, one Hispanic and four women on the bench.  There have been zero known gay or lesbians on the bench, and no other religion other the Jewish and Christian.  In our 'melting pot' society, you would think it necessary to have people with different backgrounds at the very least, adding to the discussion of the most important decisions of our day.

Lastly, lifetime appointments antiquate the court. Don’t get me wrong, there is truly a need to make sure the nominee is one with experience in law and life. No offense to our young legal minds out there, but you definitely want a decision maker who has been around the constitution, legal arguments and court rooms more than a handful of times. The issues come in when long-serving justices begin to age. As they age, they become more out of touch with the popular will. It isn’t as if the justices go to legal training every six months. I’m sorry, but if a Facebook privacy issue comes up, I don’t think it is too much to ask for a justice who knows what a computer is. I don’t know what that happy medium is, but I’m sure some legal scholar can figure out a process that is better than what exists today.

But this will never happen. The SCOUTS is a sacred cow. More so than even the president. Basically, they are untouchable. The SCOTUS is the Supreme Law of the Land given immortality by the founding fathers. They preside and watch over us making decisions, not based on the law, but based on political ideology. I guess this answers the question, Quis custodiet ipsos custodes? Who watches the watchers? The answer is – NO ONE!

Should we revisit the rules of the Supreme Court?

Should we revisit the nomination process?

Should we institute term limits on the Supreme Court?

Can you think of a better nomination process – I have a suggestion in the comments below?
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