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Constitution Day Continues: Thoughts on the Supreme Court

 
 

(Supreme Court of the United States, Question mark indicates place vacated by retirement of Justice Anthony Kennedy)

Constitution Day in 2018 has occurred at the height of one of the most contentious episodes in the history of nominations to the United States Supreme Court.  Justice Anthony Kennedy announced his retirement late in the summer.  Article II Section 2 of the United States Constitution says that the President has the power to appoint judges of the Supreme Court “with the Advice and Consent of the Senate.”  Accordingly, President Donald Trump nominated U.S. Court of Appeals Judge Brett Kavanaugh to replace him.  The Senate Judiciary Committee held hearings, with Democrats accusing the Republican majority of failing to allow enough time for the process.  Shortly before the committee was to vote on the nomination, a complainant came forward accusing Judge Kavanaugh of sexual assault while in high school, a charge that Judge Kavanaugh denies.  As of this writing, Dr. Christine Blasey Ford, the woman alleging sexual assault, will testify before the Judiciary Committee next Monday, as will Judge Kavanaugh.

Supreme Court appointments have always evoked partisan contentiousness because justices serve for a lifetime.  While judges are supposed to be impartial, in fact, the nominees always have a distinctive political bent depending on the party in power.  Once on the high court bench, only death or retirement can end their term.  There are only nine justices, and their ideological spread is considerable.  Justices can and do moderate their viewpoints over time, so sometimes a conservative justice participates in a progressive ruling, and sometimes liberals surprise their fans with a conservative opinion.  But, on the whole, the viewpoints tend to become somewhat predictable since the opinions of justices are studied intensely.

The current Supreme Court has four generally predictable conservatives:  Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito and the newest Justice Neal Gorsuch.  Four generally predictable liberal members include Justice Ruth Bader Ginsburg, Justice Elena Kagan, Justice Sonia Sotomayor, and Justice David Souter.  Because of this balance, the replacement for Justice Kennedy, who was a conservative-to-moderate vote, and sometimes even a “swing” vote to a more liberal view, is seen as an important pivot to maintain balance on the Court.

I’ll post another blog in a few days commenting on the extraordinary circumstances of the current nomination.  For now, that bit of background above sets-up this question posed to the Trinity community on the Constitution Day Straw Poll:

Question #4:  Do you agree or disagree with lifetime appointments of Supreme Court justices?


CAS Students commented:

“I would suggest that lifetime appointments of any leaders-political or judicial-is a borderline
dictatorial attribute of our society. If citizens are in favor of monopolizing the individuals who uphold
the law, Then they would vote as such. I am in favor of evolution. Traditionally unchanging the
individuals that weigh in heavily on the nature of how Americans should treat one another or
behave with one another is quite scary. Mandating that these individuals are guaranteed a seat in
the Supreme Court will almost protect them when their adherence to law waivers.”

“I don’t agree with the lifetime appointment of judges because it’s a stressful job that occupies a lot
of time. Other than that and my personal biggest concern with lifetime judges is the fact that
society changes, and having judges that are older doesn’t help younger generations because
usually older people grew up with a certain life style and they won’t understand younger
generations problems, such as then idea of student loans. Supreme court judges that are on court
now may not understand how much college and its price has changed so they don’t think student
loans are as important as college students know they are.”

“I agree with the lifetime appointments of Supreme Court justices. If for any reason, the Justice is
behaving unprofessionally, they can be impeached. I do not suggest any changes.”

Professional Students commented:

“I agree with lifetime appointments.”

“No one should have a guaranteed lifetime job. This is very dangerous. People become complacent
knowing they can’t get fired no matter what they do. Mindsets can change over the years. People
become older and their minds are not as active. They need to go through a process every 4 years
just like the President.”

“I do not agree with the lifetime appointments of the Supreme Court. There are so many people
who have different views that others. Those that are appointed will/could still have the views of
when they first became part of the Supreme Court. I believe that a fresh pair of eyes every few
years will be beneficial, the same way we can get a new President every 4 years. This gives those
that have lived and seen what happens day-to-day, the opportunity to be heard.”

“I would consider the need for a lifetime appointment. Does it serve as an extreme checks and
balance system, are they there for the purpose of continuety, does it protect them from political
influence? I don’t think so. Perhaps a 12 year term equivalent to 3 presidential terms would be
ideal and effective.”

“I do not agree that Supreme Court justices should be given a lifetime appointment. I base this in the
reasoning that as we get older our cognitive functioning decreases greatly and our ability to make
thoughtful and reasonable decisions are hampered. Another reason to not have life-time
appointees is because societies change, beliefs change and public opinion changes. Someone
appointed to the Supreme Court in 2018 will surely not be in conjunction with the beliefs of the
American people 40 years later, in many situations. I believe a life-time is too long to be given a
position, and that 20 years should be the maximum amount allotted to any appointee. There should
also be an age limit of 75 years old before passing the torch to the next justice. One should not be
able to just sit on the Supreme Court seat because they’re waiting for the next appointee to come
up who aligns with their agenda.”

“No, I do not agree with the lifetime appointments of the Supreme Court justices. Why should be
people have to wait until a judge die before being appointed to work. I would suggest that a judge
should work depending on his/her age the maximum of 30 years before retiring.”

Faculty and Staff commented:

“A lifetime appointment is far to much! A term of 20 years is more than fair and it gives more than
enough time for consistency in terms of the interpretation of the law.”

“I tend to disagree with lifetime appointments because if a justice is in failing health, especially
mental or emotional health, and refuses to step down, the judicial process is tainted. Also, a
person who was once appointed as a justice based on his or her background, character, political
position, and other factors may subtly or suddenly change completely from the individual who was
appointed. There should be a way for the other justices or an independent counsel to address
these possibilities and initiate proceedings to remove such a justice in the interest of the citizens
and the country as a whole.”

“I agree with the lifetime appointment. However, the process by which appointment and the timing
has been too politicized.”

“We were always taught that life-time appointment ensures the independence of the Supreme
Court. I still believe in this. Justices tend to become more moderate the longer they are on the
court. If they had shorter terms, I feel like the appointment process would be even more politicized
and justices would be more conscious of political issues in their decisions.”

“In general, lifetime appointments have served us well. I don’t see this as a big deal. In the modern
era, justices seldom die in office; they tend to resign when they feel they have nothing more to
offer. Of course, as people live much longer now than they used to in the late 1700s, it might be
worth considering fixed terms for justices. Those terms would need to be long (at least 20 years),
however, to provide the court with the kind of independence from Presidential or Congressional
meddling that it now enjoys.”

“Lifetime appointments to a body that comprises a full third of our government should be taken
almost as seriously as constitutional amendments. A two-thirds majority in both houses should be
required to confirm a Supreme Court Justice.”

“Lifetime appointments are intended to provide the court with maximum protection from political
interference. I don’t LIKE lifetime appointments, but I’d give them up only if an equally strong
mechanism to protect the independence of the court could be found. I have no idea what to do
about the appointment process, which has degenerated into a circus sideshow.”

“Appointment process should not be dictated by politicians (e.g., Presidential selection, Senate
confirmation hearings). Appointment process should be done by a non-partisan, non-political
entity. For instance, justices should be appointed based on geographic region or demographics so
that they represent the American population overall. Lifetime appointments seem ok; would be
better if it were generational appointments (e.g., within median American age limits).”

“I agree with lifetime appointments but Obama should have been able to make an appointment –
hate the way the Congress has handled this issue…”

“I do agree that U.S. Supreme Court Justices should have lifetime appointments. This alleviates
political pressure (they don’t worry about how their rulings will affect their careers after they leave
the court). However, the process of appointment is too political. One political party should not be
able to completely prevent a nomination hearing (as was done with Garland), and nominees
should be able to be fairly and thoroughly questioned to determine their commitment to the law
and Constitution vs. their commitment to a particular political party/ideology.”

“I agree with Emily Bazelon, legal scholar and New York Times writer, who advocates for a single
27 year term for justices. Long-term appointments definitely help keep the role of justice from being
politicized. Without that we would not have had justices like O’Connor or Kennedy who riled their
own parties with some of their decisions. The courts should be free of politics. That said, courts
get stacked by lucky presidents. We need to make sure that the court stays balanced by assuring
it gets refreshed more often.”

“The idea, as I understand it, was to prevent other influences on justice if the rulings made could
not influenced by the idea that “right” equals longer tenure. I agree that appointments should be
lifetime.”

Question #5:  Other Thoughts on the Constitution:  Should it Change?

Some responses to the final question:

A CAS student says:  “No. The Constitution is set in stone.”

A Professional Student says:  “The constitution should be changed to indicate that a sitting President can be charged, indicted and sent to prison. No one is above the law.”

Faculty and Staff commented:

“Yes. Up to 2016, I had been a vocal defender of the Electoral College as a safeguard against
really disastrous outcomes. In 2016 the Electoral College failed us; it failed to prevent the election
of precisely the kind of person it was designed to guard against–a charlatan who may well be a
traitor. The Electoral College should be abolished. We should look into other methods of direct
election of the President, perhaps through a runoff or ranking system, so that we don’t end up with
a proliferation of candidates and minor parties.”

“Our nation has been polarized by two political parties that are now virtually private industries unto
themselves. The Constitution should be amended to take the money out of politics and make
electioneering less profitable (and therefore corruptible).”

“Full and complete equality for women in all spheres of life. Guarantee the right to vote for all
citizens of legal age, including the incarcerated. Publicly-funded elections with a ban on private
money in politics.”

“Issues in our society regarding rights have the ability to be worked out through the political
process, within the legislative and judiciary arms of government. However, this requires that we
have people of integrity and ability filling those roles. This can happen if citizens are committed to
that ideal, invest the time and energy to educate themselves about issues and candidates, and
then make the time and effort to vote and participate in the national conversation.”

“Our founders were pretty wise, but I do believe that ultimately, a more just democratic system is
the parliamentary democracy. Presidential democracies place too much power into the hands of
one person. Presidents also get to make appointments of un-elected officials that we now learn
stage tiny coups in the Oval every day by removing letters from the President’s desk, intentionally
misleading and misguiding our duly elected president. They feel the NEED to do this because that
position has just become too powerful, and as a consequence, too dangerous. While a parliament
still has a leader, the power that leader has is less consolidated, and the rest of the duly elected
legislature has more say in the execution of governance, as opposed to our current conundrum
where un-elected appointees are making these moves. In addition, the Electoral College was a
solution for a bygone era and is certainly no longer needed. I see it as a wholely undemocratic
idea, and it should be abolished. Finally, weak campaign finance laws have allowed America to
replace monarchies and nobility with oligarchies. The Vanderbilts, the Carnegies, the Rockefellers,
the Astors, the Waltons, the Mercers, the Kochs, the Musks. How are these insanely rich
oligarchs, wielding their wealth as weapons against democracy, in any way different from what we
were trying to escape in the Old World? There are a few very rich people that decided this past
presidential election, and that must never happen again.”

“Let’s have a closer look at the 25th amendment.”

And these comments:

“Thanks for waking my brain to our constitution in this way….”

“…this survey peaked my interest in the constitution to study it.”

That’s the whole point of Constitution Day!  Thanks for your participation!

What is your opinion?  Join the discussion by adding your comments in the box below….

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Patricia A. McGuire, President, Trinity, 125 Michigan Ave. NE, Washington, DC 20017
Phone: 202.884.9050   Email: president@trinitydc.edu