Mark Noonan at Blogs for Bush links to an OpinionJournal - Featured Article. From Mark:
We get judges who don't have to care whit about what people think or what the law actually is; add the odd senile justice into the mix and it only gets worse. In my view, Justices should serve for ten years. This would ensure that no Justice is ever replaced by the President who appointed him, but it would also open up the Courts to a more rapid turnover of Justices thereby giving the American political system the reasonable ability to alter a judiciary which has gotten off the Constitutional ranch.
I agree with Mark that the time has come for a change. But the piece at Opinion Journal points out some key issues we'll need to think about in this regard.
For these reasons, over the past few years we have been advocating a constitutional amendment that would limit the justices to an 18-year term with one seat opening up every two years. ... In this respect, it would resemble the two-term limit on presidents that went into effect prospectively and which also restored a time-honored tradition of limited government service.
Also of note:
Some have suggested that Congress might have power to limit Supreme Court terms by passage of an ordinary statute. We disagree. The Constitution specifically contemplates a separate office of Supreme Court justices, and it logically implies that that particular office must be held for life. For 216 years, Americans have so understood the constitutional text. We think that practice has thus settled the idea that Supreme Court justices currently serve for life. To change that practice, a constitutional amendment is required.
This would be a huge change to the fabric of our democracy. It should require a constitutional amendment and the length of terms needs to be thought about very carefully. I'm glad to see that this is getting some attention; it's about time.
I'm thinking the cause of it would be better served to the extent it can be thought of also in the more positive context of how the world in general has changed, as opposed to only how the system is producing some poor results due to some individuals, or individual instance of aging.
Everything changes more quickly today as result of technology and more efficient access to information. Advances in science, business, education all come under that umbrella. Consequently, an isolated branch of government just doesn't age, it also can miss more and more as result of being, to some extent, parked by the side of the road in a secure space without worrying about the moving traffic all around.
Man in vacuum tends to be drawn to the theoretical and away from the practical. For simplicity, let's take the case of employment law. The nature of employment, the challenges for American workers as well as American corporations has changed significantly in the past ten years, let alone twenty.
Yet the individuals sitting on the court today, for the most part, have no contextual understanding of the American workplace as it presently exists. Yes, they can read about it - but how truly engaged in it they are is a matter for some speculation. It isn't hard to imagine a group of very scholarly folks winding up basically cut off from the practical realities of employment in America today. So, are they really the best to be the ultimate judge of the laws that should govern in that example? Perhaps not.
I'm for a system that assures the court is more in touch with a fast changing world, whtever that may mean. My concern is that our laws are being judged today by individuals just a bit too far removed from the practical aspects of our lives, and with a tendency to get lost in lofty theoretical constructs that don't always serve us well in the face of everyday reality.
The founders were learned men and great thinkers, but above all else they were also very practical men. I'm not convinced that can be said of today's court.
I would strongly urge anyone making this argument to read the Federalist papers 79-81. Please.
Posted by: Bonddad | Monday, April 11, 2005 at 09:53 AM