• Post Reply Bookmark Topic Watch Topic

US Supreme Court vacancy  RSS feed

 
author & internet detective
Marshal
Posts: 38248
623
Eclipse IDE Java VI Editor
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
The end of an article in NYTimes magazine contained the quote:

The election is the constitution’s answer for preventing any long-term crisis. The voters will get to punish or reward whichever party they choose. But a year or more of a Supreme Court vacancy would expose the creaks in the joints of the Constitution. Maybe it is an argument for updating the 226-year-old document. If Supreme Court justices served 18-year terms instead of life tenure, their appointments could be staggered so that each president would get two. The process would be more predictable and more orderly.



My first thought when I read that was that it sounded bad because it would make the Supreme Court more partisan than it is now because the judges would need favor to get "re-assigned." But then 18 years is a long time and they could retire after that. So independence would be preserved. And it could make assignment timelines more predictable so the President would be prepared to nominate.

If that happened, I'd like it paired with something that prevents this "we will refuse to confirm anyone for a year" rhetoric we are hearing now.
 
lowercase baba
Bartender
Posts: 12624
50
Chrome Java Linux
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Jeanne Boyarsky wrote:The end of an article in NYTimes magazine contained the quote:

The election is the constitution’s answer for preventing any long-term crisis. The voters will get to punish or reward whichever party they choose. But a year or more of a Supreme Court vacancy would expose the creaks in the joints of the Constitution. Maybe it is an argument for updating the 226-year-old document. If Supreme Court justices served 18-year terms instead of life tenure, their appointments could be staggered so that each president would get two. The process would be more predictable and more orderly.



My first thought when I read that was that it sounded bad because it would make the Supreme Court more partisan than it is now because the judges would need favor to get "re-assigned." But then 18 years is a long time and they could retire after that. So independence would be preserved. And it could make assignment timelines more predictable so the President would be prepared to nominate.

If that happened, I'd like it paired with something that prevents this "we will refuse to confirm anyone for a year" rhetoric we are hearing now.


1) I think they are saying you get ONE 18 yr. appointment, so the justices (Note: in the SCotUS, they are Justices - lower courts have judges) would not need to win favor. they could not be re-appointed.
2) What happens when one dies before the end of their 18yr term?
 
Jeanne Boyarsky
author & internet detective
Marshal
Posts: 38248
623
Eclipse IDE Java VI Editor
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Sorry, justices. Thank you for pointing that out.

1) That makes sense. Picking someone too young is a danger. Because if the person knows he/she needs to get another job in 18 years, there's the possibility of being biased.
2) That could happen to the President wiht a 4 year term. Or the House with a 2 year term. The odds are just lower. I think the idea is to guarantee that openings come up for each President.
 
fred rosenberger
lowercase baba
Bartender
Posts: 12624
50
Chrome Java Linux
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Jeanne Boyarsky wrote:Sorry, justices. Thank you for pointing that out.

1) That makes sense. Picking someone too young is a danger. Because if the person knows he/she needs to get another job in 18 years, there's the possibility of being biased.
2) That could happen to the President wiht a 4 year term. Or the House with a 2 year term. The odds are just lower. I think the idea is to guarantee that openings come up for each President.



They tend to not pick anyone young because they haven't "proven" themselves. They haven't written a lot of decisions, so it's not known whether they are a liberal activist or a conservative activist judge. And I think anyone who's been on the SCotUS won't have a problem finding a job. All the law schools would fall over themselves trying to hire him/her as a professor, as would many huge law firms. Imagine if Sotomayer got a job at a law firm and they needed to argue a case in front of the SCotUS - with all her friends...

2) My point was more what do you do? that President would then get a bonus appointment (which isn't the worst thing in the world), but does that person get a new 18 year appointment, or do they only finish the existing term? Are they then banned from being re-appointed? It gets hairy if a justice dies/resigns with say seventeen years left on their term...or two. Would you take a position you knew you could only hold for two years?

 
fred rosenberger
lowercase baba
Bartender
Posts: 12624
50
Chrome Java Linux
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
also, I think this may become one of the biggest battles in this election cycle. appointing a justice has repercussions for DECADES...Things like ACA/Obamacare can be undone by the next administration. a new Justice can shape the court for easily 20 years, not to mention how long any cases decided then last. Loving v. Virginia, or Roe v. Wade. Both were highly controversial in their times (and one still is, forty+ years later...).
 
Jeanne Boyarsky
author & internet detective
Marshal
Posts: 38248
623
Eclipse IDE Java VI Editor
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

fred rosenberger wrote:They tend to not pick anyone young because they haven't "proven" themselves. They haven't written a lot of decisions, so it's not known whether they are a liberal activist or a conservative activist judge. And I think anyone who's been on the SCotUS won't have a problem finding a job. All the law schools would fall over themselves trying to hire him/her as a professor, as would many huge law firms. Imagine if Sotomayer got a job at a law firm and they needed to argue a case in front of the SCotUS - with all her friends...


Which is one of those conflict of interest issues that, at least in theory, a lifetime appointment solves

fred rosenberger wrote:2) My point was more what do you do? that President would then get a bonus appointment (which isn't the worst thing in the world), but does that person get a new 18 year appointment, or do they only finish the existing term? Are they then banned from being re-appointed? It gets hairy if a justice dies/resigns with say seventeen years left on their term...or two. Would you take a position you knew you could only hold for two years?


Ah. For President, I recall the rule is that you can only be elected to two terms if you didn't serve more than half of one you "emergency" filled. That logic would put it as 9. Which is still a problem. Because you'd know there was a full 18 year position coming up. You couldn't do a full 18 year appointment because that would mess up the cycle of appointment over time.
 
Jeanne Boyarsky
author & internet detective
Marshal
Posts: 38248
623
Eclipse IDE Java VI Editor
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

fred rosenberger wrote:also, I think this may become one of the biggest battles in this election cycle. appointing a justice has repercussions for DECADES...Things like ACA/Obamacare can be undone by the next administration. a new Justice can shape the court for easily 20 years, not to mention how long any cases decided then last. Loving v. Virginia, or Roe v. Wade. Both were highly controversial in their times (and one still is, forty+ years later...).


Agreed. And it didn't take 24 hours to become an issue.

I'd like to see the GOP leadership explain why they wouldn't consider Sri Srinivasan. I'm sure there are reasons not to vote for him (as there are for anyone). But almost everyone voted for him 4 years ago. It's a much harder argument to make for "can't consider him because Obama nominated him".

What scares me is that not considering any nominees could potentially NOT affect the election. A lot of people didn't understand the significance/risk of a government shutdown - even when it happened. If inaction on the Supreme Court could be spun away, I think it is a major blow to accountability.
 
Bartender
Posts: 598
26
Linux Notepad Oracle
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Well, it's far enough before the election that Obama ought to be able to choose. However, as he has his a number of cases his administration will be arguing in front of the court, its a bit of a conflict for him to be choosing the deciders. Further, after insulting some of them to their faces during the state of the union address, it smells like a really bad idea for him to be choosing anyone. Add on top of that that he like to choose "firsts" over substance (not that his choices don't have substance, or that firsts aren't fitting choices, but that seems to come second) i really don't want him choosing anyone.

The president used to be a more ceremonial role, however, much like the court's ever-extending reach, the presidency has taken more and more powers for itself. So be it. But, being presidents (all of 'em) now have a vested political interest in the judges, we ought to take that power away from the executive branch. A public vote is no good as we can't have judges campaigning, and we must also consider that age is an important factor to maturity, with cases decided tempering the judge along the way. I would think the longest service federal judge (of high enough a court) should simply become the next justice, with congress having the ability to override it with a 2/3 vote. I'd suggest further that federal court judges be appointed by longest serving (similar) state courts, if they affirm they want the job.

Nothing can fully take the politics out of people's judgements, but delivering it into the hands of a bunch of high profile politickers does not a good appointment make.
 
fred rosenberger
lowercase baba
Bartender
Posts: 12624
50
Chrome Java Linux
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Brian Tkatch wrote:as he has his a number of cases his administration will be arguing in front of the court, its a bit of a conflict for him to be choosing the deciders.


When is that NOT the case? Every administration argues cases in front of the court.

Brian Tkatch wrote: Further, after insulting some of them to their faces during the state of the union address, it smells like a really bad idea for him to be choosing anyone.


I didn't see/hear about that. What did he say?

Brian Tkatch wrote:Add on top of that that he like to choose "firsts" over substance (not that his choices don't have substance, or that firsts aren't fitting choices, but that seems to come second) i really don't want him choosing anyone.


So...how do you know what his priorities were? I think both Kagen and Sotomayer are both extremely well qualified. and while the later is the first hispanic, I'm not sure what Kagen is supposed to be the "first" of...

Brian Tkatch wrote: we ought to take that power away from the executive branch.


That is a major shift over what the constitution says. The president nominates, the senate confirms. checks and balances.

Brian Tkatch wrote:A public vote is no good as we can't have judges campaigning


Some judges DO campaign and are elected, at some of the lower levels. Of course, you are talking about justices, not judges.

 
Brian Tkatch
Bartender
Posts: 598
26
Linux Notepad Oracle
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

fred rosenberger wrote:When is that NOT the case? Every administration argues cases in front of the court.



Good question. I'm also wondering if there is a list somewhere. The one major issue right now is Obama's immigration order, which he said he would fight for. Allowing him to choose the judge for that doesn't seem right. But, you're right, without a list, it's hard to compare cases.

fred rosenberger wrote:

Brian Tkatch wrote: Further, after insulting some of them to their faces during the state of the union address, it smells like a really bad idea for him to be choosing anyone.


I didn't see/hear about that. What did he say?



Wikipedia has it here "Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections." Very uncool.

fred rosenberger wrote:

Brian Tkatch wrote:Add on top of that that he like to choose "firsts" over substance (not that his choices don't have substance, or that firsts aren't fitting choices, but that seems to come second) i really don't want him choosing anyone.


So...how do you know what his priorities were? I think both Kagen and Sotomayer are both extremely well qualified. and while the later is the first hispanic, I'm not sure what Kagen is supposed to be the "first" of...



I'm talking about appointees in general. It's hard to find a source for the rhetoric of the time, and even if there was a list, it would likely be biased. So, i'll leave it as my opinion (which is all i am expressing) and if you disagree, well, i'll accept that as your opinion too.

fred rosenberger wrote:

Brian Tkatch wrote: we ought to take that power away from the executive branch.


That is a major shift over what the constitution says. The president nominates, the senate confirms. checks and balances.



Yes. But, as i stated, because the presidency has shifted significantly from it's original role. Checks and balances are fine for parties without an agenda. That hasn't been the case in well over a century.

fred rosenberger wrote:

Brian Tkatch wrote:A public vote is no good as we can't have judges campaigning


Some judges DO campaign and are elected, at some of the lower levels. Of course, you are talking about justices, not judges.



No. I don't think judges should ever campaign. Regardless, on the highest court, they should definitely not campaign. We want mature, seasoned individuals who don't really want to rule unless they have to.
 
fred rosenberger
lowercase baba
Bartender
Posts: 12624
50
Chrome Java Linux
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
I'm not sure where Obama's immigration order is in the courts right now. Is it about to go before the SCotUS? If it is in the lower courts, it could be years. And if the Republicans win this year, it's moot anyway as they will instantly rescind the executive order.

re: State of the Union Address.
I thought you were talking about the recent one. That was from 2010. The wiki page you linked to says Obama said this:"Last week, the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections."
They DID reverse the law (not sure if it was a century old precedent or not). And he stated "I believe it will do this" - which is his opinion. And from what I see/read, it turns out to be true.

re: appointees in general
I'm not sure. I don't pay as much attention to the lower courts, and it's harder to research. Maybe instead of focusing on "firsts", he's trying to correct decades of bias in appointments to the courts.

re: presidency has shifted significantly from it's original role
So has Congress. So has the court. Every party has an agenda. everyone in politics has an agenda. There's no getting away from it.

re: campaigning
I think I agree with you here 100%. neither judges nor justices should campain. In Missouri, State judges are appointed, but every few years are subject to a recall vote. The ballot is full of "Shall so-and-so retain their position as a judge"? I can't remember any ever getting voted out. It's a farce.
 
Brian Tkatch
Bartender
Posts: 598
26
Linux Notepad Oracle
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

fred rosenberger wrote:I'm not sure where Obama's immigration order is in the courts right now. Is it about to go before the SCotUS?



A quick search found this.

fred rosenberger wrote:And if the Republicans win this year, it's moot anyway as they will instantly rescind the executive order.



Most likely. Regardless, it's a decision on the reach of executive orders, isn't it?

fred rosenberger wrote:They DID reverse the law (not sure if it was a century old precedent or not). And he stated "I believe it will do this" - which is his opinion. And from what I see/read, it turns out to be true.



That's not the point. A sitting president rebuking members SCOTUS, who were sitting in front of him, while in midst of the most publicized political speech in the US, is just not right. He can give his opinion anywhere, anytime. But there and then shows his contempt for the court.

fred rosenberger wrote:Maybe instead of focusing on "firsts", he's trying to correct decades of bias in appointments to the courts.



I'm not focusing on courts. Regardless, courts are not the place for making a statement. Judges, specifically, are were we want the best person for the job, nothing more, nothing less.

fred rosenberger wrote:re: presidency has shifted significantly from it's original role
So has Congress. So has the court. Every party has an agenda. everyone in politics has an agenda. There's no getting away from it.



What?! Congress makes laws. The debate of big government vs small government predates the constitution and parties were already in place. Washington's farewell address mentions party politics very early on. The only thing that has changed much is the polarization between the parties. That is completely different than SCOTUS and the presidency.

fred rosenberger wrote:In Missouri <snip> It's a farce.



Well, that's what you get for having a Show Me the Money State.
 
Bartender
Posts: 1460
31
C++ Java Netbeans IDE Windows
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Just a couple of factoids:

  • Some states have elections for their supreme court justices. Alabama, for example. Earlier this century, their chief justice (man named Roy Moore) defied a federal court order when he refused to have a monument bearing the biblical Ten Commandments removed from the rotunda of his courthouse. He ended up being removed from the bench for it. He spent the next several years working and lecturing for a group called, "The Foundation for Moral Law." In 2012, he was again elected to be the chief justice in Alabama.


  • As for justices, most states have a "supreme court" and their judges are "justices." To the endless confusion of lawyers from other places, New York state's trial courts of general jurisdiction are called "supreme" courts, and, indeed, the judges in those courtrooms are "justices." New York's topmost court is simply called the Court of Appeals, and its judges are "judges."


  • Interesting comparison of situations here, btw. In Washington, federal Republicans are saying they want the people to "be heard" in choosing the next justice, rather than let Obama nominate anyone. This week, state Republicans in Richmond were scrambling to elect a state justice (justices here are elected by the legislature, with no nomination from the governor required). They have 21 of 40 seats in our senate, and planned to elevate an appellate judge named Alston. But, Alston only got 20 votes, not the necessary 21. On Monday, with no advance notice, the put their previous (and failed) candidate for governor's name in play for the job. Nope, couldn't get the 21 for him, either. Tuesday, they put in the name of another appellate judge, McCullough. Prior to Tuesday, no one had heard that Judge McCullough was even in the running. Usually, when the state senate picks a person, they at least ask for the governor's input, and allow testimony from members of the public, before holding a vote.

    But here's the rub: the legislative session ended today and, if there were no vote, the governor would get to appoint someone for the rest of the year. He did that already, when a justice left in 2015. His appointee was a universally respected trial judge, named Roush. But our governor is a Democrat. So Roush didn't even get interviewed by the senate (even though everyone seems to think she's doing a good job). So, rather than let him appoint Roush for another year, they did a mad sprint at the end, finally electing a justice yesterday whose name hadn't been mentioned more than two days before that, all with no opportunity for public commentary whatsoever.

    Meanwhile, in Washington, the same party will take no action, because, of course, the people must have their say...
     
    Bartender
    Posts: 10575
    66
    Eclipse IDE Hibernate Ubuntu
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Jeanne Boyarsky wrote:My first thought when I read that was that it sounded bad because it would make the Supreme Court more partisan than it is now because the judges would need favor to get "re-assigned." But then 18 years is a long time and they could retire after that.


    Personally, I'd like to see it even shorter - perhaps 14 years, which is about a year less than the historical average, but 12 years shorter than the average tenure since 1970.

    And you only get one crack at the whip.

    I like the idea of having a nomination every 2 years (perhaps near the end of each odd-numbered year) so that each presidential term gets two, and to encourage turnover; but I'd also like to see a more inclusive process so that the candidate is less of a "political" appointee (I'm not sure how I'd go about it though).

    For early retirements or deaths in office - I think the replacement should be selected by the court itself, perhaps in conjunction with the ABA, to serve the remainder of the original term; and every effort should be made to keep a similar "voice" in the seat. If that remainder is less than 4 years, the appointee is eligible for nomination to a full term via the normal process; otherwise not. Thus, in theory, a justice could serve for up to 18 years.

    Finally, I think that justices who wish to remain in office after the age of 70 should be willing to submit to an annual medical. Obviously this means that nominees older than 56 would be at a disadvantage, but perhaps that's no bad thing. There are currently 3 justices over 75 and 5 (a majority) over 65 - which is retirement age for most of us - and while I don't expect them to reflect a national age demographic, I'd say that's probably a bit too old.

    My 2¢ view from across the pond.

    Winston
     
    Brian Tkatch
    Bartender
    Posts: 598
    26
    Linux Notepad Oracle
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Winston Gutkowski wrote:I'd also like to see a more inclusive process so that the candidate is less of a "political" apointee (I'm not sure how I'd go about it though).


    I suggest you go about it by accepting that people are political, and specifically trying to balance the court to that end. One conservative, one liberal, one strong conservative, one strong liberal, one mild conservative, one mild liberal, and a few people who are neutral, especially if the justices themselves appoint them.

    Winston Gutkowski wrote:There are currently 3 justices over 75 and 5 (a majority) over 65 - which is retirement age for most of us - and while I don't expect them to reflect a national age demographic, I'd say that's probably a bit too old.


    I say, the older the better. They've seen more, they know more, they're more mature, and they rarely care what anyone else thinks. Physical and mental health are important, so we would need to keep tabs on those, but i'd rather put the minimum age at 65.
     
    Sheriff
    Posts: 23506
    47
    Eclipse IDE Firefox Browser MySQL Database
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Brian Tkatch wrote:I suggest you go about it by accepting that people are political, and specifically trying to balance the court to that end.



    Although as Stevens pointed out earlier, the people who make the appointments themselves are political, and they don't want the court to be balanced. At least not in the US, they don't. (It seems to work differently in Canada, where our previous prime minister appointed seven of the nine justices but they still regularly rejected his legislation as being unconstitutional.)

    I suppose you could change the system so that justices are nominated for consideration by a non-political commission; but there doesn't seem to be any such thing as a non-political commission either.
     
    Winston Gutkowski
    Bartender
    Posts: 10575
    66
    Eclipse IDE Hibernate Ubuntu
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Brian Tkatch wrote:I say, the older the better. They've seen more, they know more, they're more mature, and they rarely care what anyone else thinks. Physical and mental health are important, so we would need to keep tabs on those, but i'd rather put the minimum age at 65.


    Hmmm. I suspect that would skew the political view to the right, since there aren't that many 70-year old rabid reds around, but plenty of cantankerous old gits (especially over here).

    Do we really want our laws made by people who have to have afternoon naps?

    Winston
     
    Brian Tkatch
    Bartender
    Posts: 598
    26
    Linux Notepad Oracle
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Winston Gutkowski wrote:I suspect that would skew the political view to the right


    I think people get more liberal or tolerant as they age. Look at people who revisit old wars (that they were soldiers in).

    Winston Gutkowski wrote:Do we really want our laws made by people who have to have afternoon naps?


    OTOH, the less they do, the better. Nap away.
     
    Winston Gutkowski
    Bartender
    Posts: 10575
    66
    Eclipse IDE Hibernate Ubuntu
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator

    Winston Gutkowski wrote:Do we really want our laws made by people who have to have afternoon naps?


    Peter Cook seems to agree with me.

    Winston
     
    Stevens Miller
    Bartender
    Posts: 1460
    31
    C++ Java Netbeans IDE Windows
    • Mark post as helpful
    • send pies
    • Quote
    • Report post to moderator
    President Obama made his nomination today. It's a sly move on his part, as he has chosen a fairly centrist, unquestionably qualified judge who is 63 years old. Stonewalling this nomination will be hard to sell to moderates, especially when polls are showing that over 60% of the country wants the Senate to at least hold a hearing and let the nominee answer questions (and that's over 60% of Democrats, over 60% of independents, and over 60% of Republicans). Being tough guys about this is going to be costly for the ones who are up for re-election this year.

    At the same time, a 63-year-old judge might serve ten to fifteen years. If the Senate doesn't approve him, and Hillary Clinton becomes the next president, she is certain to nominate someone more liberal. And that person might be in their mid-40's, implying a potential 30 years of service.

    Those guys are playing with fire, no matter how you look at it.
     
    If we don't do the shopping, we won't have anything for dinner. And I've invited this tiny ad:
    Rocket Oven Kickstarter - from the trailboss
    https://coderanch.com/t/695773/Rocket-Oven-Kickstarter-trailboss
    • Post Reply Bookmark Topic Watch Topic
    • New Topic
    Boost this thread!