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Thursday, July 19, 2018

Lindgren and Stolzenberg on SCOTUS term limits

In the L.A. Times. They suggest a constitutional amendment is required, while recognizing that not everyone agrees. But they suggest the states would support an amendment, given that 49 of 50 states have term limits or maximum judicial ages. The problem, they suggest, is that members of Congress may not want to do this for fear that it would cause the public to demand legislative term limits, as well.

Posted by Howard Wasserman on July 19, 2018 at 08:47 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink


According to this
the Senate race in WV can swing 27 percentage points based on whether Manchin votes to confirm Kavenaugh. With this kind of pressure, how much longer can nominees politely refuse to answer questions that directly bear on how they would rule on likely hypothetical cases? When the court appears to have more power on hot-button social issues than the legislatures, how much longer *should* they be able to refuse such questions?

These notions of term-limits and expanding the size of the court are, in a sense, an admission that the politicization of the Federal judiciary is complete and irreversible. If we can't go back to the days of dispassionate experts ruling on legal arcana, the best we can hope for is to make judges democratically accountable.

Posted by: M. Rad. | Jul 21, 2018 12:03:11 PM

"The great danger with SCOTUS term limits is that it makes the appointment of a new justice fully determined ahead of the campaign and I worry this creates pressure for candidates to commit to specific picks."

Experience already shows that there is a large likelihood that justices will need to be replaced during a president's term. The rule here will make it more assured but not sure why this problem (if it exists) wouldn't already on some level be present.

Plus, candidates already "commit" -- judges are an important part of elections and candidates commit to a particular type of nominee. As to committing to a specific one, since Trump only had a fairly long list when a specific opening was at stake, not sure why that is more likely.

To the degree that nominees in some general fashion commit to a specific type of nominee, that seems appropriate -- if we don't want that sort of thing, change how we fill the courts (i.e., political actors). As is, the people will pick presidents based on what they will do, including the sorts of judges they will nominate. At any rate, the marginal increase of the possibility of this happening to me doesn't cancel out the value of the term limit idea as a whole. Few things have no down sides.

(btw in Lincoln and Douglas' race for the U.S. Senate, most of the state legislators pledged themselves to one or the other)

Posted by: Joe | Jul 21, 2018 10:13:39 AM

I understand Peter's position. It's sort of similar to the criticisms that led to the 17th Amendment. State elections got to the point that the elections revolved around who a particular state legislator would support for senate...thus, all of the different interests in the states were ignored.

Likewise, most people are savvy enough to understand a SCOTUS pick is likely to be the most permanent thing a president does, especially in our current age of presidents from different parties dismantling all of the initiatives of the previous president.

As a result, it's more than possible that presidential elections would simply turn into voting over who the president would nominate for SCOTUS. In all honesty, one cannot tell too much from the 2016 election since the Democrats did not feel like anything was at risk since they never thought Trump posed a serious challenge.

Posted by: YesterdayIKilledAMammoth | Jul 20, 2018 2:26:40 PM

I don't see why that would be. We just had an election in which both candidates knew that, if elected, they would be able to fill a seat immediately and there even was a known nominee for that seat. Yet neither candidate committed to specific picks, not even naming Garland. Similarly, every candidate now knows she will have at least two picks to make, but not necessarily the knowledge as to who that will be. Perhaps it will be someone who spend two years on the court of appeals first. Or, as with Kagan, someone who spends a year as SG first.

Posted by: Howard Wasserman | Jul 20, 2018 1:13:48 PM

The great danger with SCOTUS term limits is that it makes the appointment of a new justice fully determined ahead of the campaign and I worry this creates pressure for candidates to commit to specific picks.

In particular, I worry that term limits would essentially unravel the presidential discretion in appointing justices and that instead the choice of justice would become fully determined by the politics of the situation.

The same problem doesn't really exist at the state level because, at least times, state supreme courts haven't really been where questions of fundamental rights and judicial process issues have been determined. The mere existence of a federal minimum creates much less pressure to fight the point in state court and the fact that states tend to be more politically uniform and more majoritarian makes it easier to pursue reforms politically.

Posted by: Peter Gerdes | Jul 20, 2018 1:06:50 PM

The answer is not SCOTUS term limits. I am currently working on an article that has the answer to all our SCOTUS woes. Stay tuned.

Posted by: YesterdayIKilledAMammoth | Jul 19, 2018 10:00:52 PM

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