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Supreme Court: No More Lifetime Appointments

August 3, 2015 in Economics

By Doug Bandow

Doug Bandow

Democrats and Republicans alike have turned Supreme Court appointments into a partisan slugfest. No wonder: while the judiciary has long been described as the least dangerous branch of government, the court has become instead a continuing constitutional convention. Just five votes can turn the Constitution inside out.

The latest Supreme Court term was seen as a shift to the left. The high court rewrote Obamacare to save the president’s landmark legislation to socialize American health care and completed a social revolution by nationalizing gay marriage. These decisions set off a flurry of promises from Republican Party presidential candidates to confront the judiciary.

Extreme Measures

Jeb Bush said he would only appoint judges “with a proven record of judicial restraint,” even though previous presidents claiming to do the same chose Anthony Kennedy, David Souter, and John Roberts, among many other conservative disappointments.

Senator Ted Cruz (R-TX) called for judicial retention elections. Such a change at the federal level would require a constitutional amendment, though it would mimic the practices of some 20 states. Even more controversially, Cruz suggested that only those whose case was brought before the justices had to respect Supreme Court rulings.

Extreme measures seem necessary because a simultaneously progressive and activist judiciary has joined the legislature and executive in forthrightly making public policy.

It is necessary to find a way to impose accountability while preserving independence. Appointing judges to fixed terms would simultaneously achieve both objectives.”

Should Justices Serve for Life?

The influence of judges has been magnified by their relative immunity from political pressure. Although the courts sometimes follow the election returns, in many cases — such as abortion and gay marriage — judicial decisions have short-circuited normal political discourse.

That fact alone makes judicial appointments important. Their significance is magnified by judges’ life tenure.

Lose the battle over filling a Supreme Court slot and you may suffer the consequences for decades. Gerald Ford’s unelected presidency merits little more than a historical footnote, but his Supreme Court legacy long persisted through Justice John Paul Stevens, a judicial ideologue hostile to liberty in most forms. Republicans going back to Dwight Eisenhower publicly lamented the evolution of their appointees, and every one of them made at least one choice that ultimately advanced a big-government agenda. Anthony Kennedy and John Roberts fill that role today.

Lifetime tenure has other consequences. The appointment process is endlessly arbitrary, as judges hang on, irrespective of advancing age. Although …read more

Source: OP-EDS

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