ConfirmThem

The most important near-term goal is not so much getting a 7th CCA nominee (after Tinder) confirmed this year. The main thing is getting a hearing for that nominee, probably Haynes, and getting her out of SJC before recess. Otherwise Senate Dems will use the delay to prevent any more CCA hearings until mid-February at least. As they did for two months with Southwick, Leahy & Co. will use the hang-up of a nominee awaiting a favorable vote in Committee to prevent a timely hearing for the next nominee in line.

Once on the Floor, a nominee will probably get a vote after the Southwick precedent last week and most are likely to be confirmed. The GOP/moderate-Democrat coalition that pushed Southwick across will probably see to that. The nine radical Democrats on the Judiciary Committee are the real problem. They will work hard to prevent hearings and votes, since Feinstein may well vote again with the Republicans to form a majority. Delay in Committee is the name of their game more than ever, since they can no longer control the outcome of votes in Committee or on the Floor.

As long as a justice is compos mentis, why shouldn't he serve for as long as he wants? As far as I know, there has never been a situation where a majority of Supreme Court justices were not of sound mind. As long as there are enough sane justices to keep the elderly ones with dementia sidelined, I don't see that there is a real problem here. Do you view the situation in which Burger and seven other justices marginalized a senile Douglas as a "constitutional crisis"?

http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR200710...

"A vote on Mukasey's nomination by the Judiciary Committee is unlikely for at least two weeks, legislative aides said yesterday. That means the nomination may come before the full Senate shortly before Thanksgiving."

But I think that over the recess, Bush should come up with nominees for all of the open Judicial Emergencies vacancies and then he should start to hammer on the SJC.

"The Senate Judiciary Committee has left Kethridge, etc, etc languishing. America deserves justice and America deserves to have the judicial EMERGENCIES handled immeadiately."

Oz

Read my most recent story, "The GOP race: My 1st runner up -- Mitt Romney" on First Cut Politics

It would also give a good sound bite message to the groups like CFJ to use in red states with Democratic senators ...

"Ask Senator Landrieu to stop the Democrats from blocking judicial EMERGENCIES."

Oz

Read my most recent story, "The GOP race: My 1st runner up -- Mitt Romney" on First Cut Politics

Overturn Roe.

Once we get the (really bad) politics out of the court, I don't think that the justices will see their job in such an adversarial way. Then maybe we won't have justices holding out for a president they like so that they can retire.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

I have not yet read the articles to which Linda Greenhouse referred. However, my reasons have nothing to do with whether or not the justices are healthy.

The way our system worked until the 1970s was that each president (especially the two-term presidents) would be able to have a big impact on the Supreme Court. That way, the general philosophy of the Court would vary over time like the seasons in New England, and any new precedent would have to survive those seasonal changes in order to become entrenched. Nowadays, the Court is more like Antarctica, with not much change in conditions, and precedents are much more likely to become entrenched without satisfying a wide variety of judicial philosophies.

This problem is subtle, but I think it's very real. The Court today can write opinions without worrying much that they will have to satisfy a future Court having a significantly different judicial philosophy. This is dangerous, and removes a key constraint on the Court.

There should definitely be a mandatory retirement age for federal judges. There is no need or excuse for keeping out-of touch, diminished capacity, quasi-senile or even perfectly healthy octogenatian or nonagenerian judges on the bench. Out of touch elderly past their prime justices has been a perrenial problem (see the 4 Horsemen) and modern medical science is making it progressively worse.

Almost every other profession has a retirement age. Why should the Supreme Court, with its extaordinary mental demands, be an exception. 80 is enough!! More than enough!

That's an interesting new standard, but about as low a bar as I've seen yet. As I understand your argument, as long as there no more than 3 or 4 U.S. Supreme Court justices suffering from senility, advanced dementia or mental incompetence, then everything is just fine because there will be "enough sane justices to keep the elderly ones with dementia sidelined".

Was that written seriously? To paraphrase Jack Buck on Gibson's World Series home run in 1988: I don't believe what I just read! Especially coming from someone as thoughtful as you. Maybe you meant it as a joke after all.

Please re-read my post #8 above, and reconsider.

And while you're at it I'd be interested to hear your take on my analysis on my SJC analysis in post #1.

Comment #1 - I agree that it would be better for any Bush COA nominee to get a hearing before the December break in order to quicken the pace of confirmations in 2008. The problem is with the Democrats. Leahy controls the timing of hearings, and if he wants to stall nominees the SJC Republicans can't stop him. I just don't see Leahy wanting to accelerate the confirmation of any of the present Bush nominees with the possible exception of Haynes.

Since Southwick has now been confirmed, I think there is less pressure on Leahy to fast-pace Haynes in order to keep the 5th Circuit running. I expect her to suffer the same fate as Debra Livingston last year. Livingston was held over until 2007 even though she was perfectly confirmable in 2006. Yes, Haynes will get eventually, but not maybe this year. A lot depends on if Leahy wants to match the number of COA confirmations allowed by the Republicans in 1999.

Comment #2- In general, I don't see any reason to amend the Constitution at this point. If it's not broken, don't fix it. In a review of the Supreme Court's recent history, I am aware of only two incidents in which problems with elderly justices has caused a problem, In each case, the situation was resolved without changing the Constitution. First, when both Harlan and Black were sick and dying at the same time, and, secondly, when Douglas went senile. In neither situation was there institutional harm to either the Supreme Court or the United States as a whole. The illnesses and eventual deaths of Brennan, Marshall and Rehnquist also did not dramatically impact the court. I think the chances of 5 justices becoming mentally incompetent at the same time is ridiculously low.

Rather than allow an amendment to correct a possibly nonexistant problem, I would much more prefer an amendment which would deal with the mass death of the Supreme Court in a terrorist attack, which I see as a much more realistic and pressing possibility that needs to be addressed.

the way they are. Yes, there are end of life abuse of position. Yes, the actuarial tables mean on average longer life than envisioned. But this is the way it was established and I believe it should stay this way and not be tinkered with.

http://www.washingtonpost.com/wp-dyn/content/article/2007/10/27/AR200710...

If this is true, then there is no way that Webb allows a Bush nominee to be confirmed to either of "his" two Virginia seats on the Fourth Circuit.

Webb is probably not seen as outrageous a VP choice as I'd like him to be seen, but I still think he's far too risky for the Dems to put on a national ticket.

Bush should have picked from the Warner/Webb list. I can imagine Bush and his cronies disregarding it, but why would Fred Fielding? Although not a horribly informed remark, I do think Fielding has been a bit of a disappointment. Many had high hopes for him, and he seems nothing more than sufficient.

I agree with you that a constitutional amendment probably would not be the best approach to this problem. But why oppose a statutory solution? To the extent that a statutory solution is constitutional, the system was established in a way that would allow tinkering via statute.

Bush doesn't like Webb, and Webb doesn't like Bush, and neither really wants to listen to the other.

How can a statute impose such an age limit on an Article III judge? The Constitution provides only that Article III judges "shall hold their offices during good behaviour."

Judge Roy Snyder, in 1937 FDR proposed a statute that would survive constitutional scrutiny. Instead of removing a judge when he hits a certain retirement age, FDR proposed that the judge could refuse to retire, but then at least one additional judge would be appointed. Thus, the size of the Court could vary. The only problem that FDR's proposal had was that it would have applied not just to future instances where a judge hits the retirement age, but would also have applied retroactively to judges who had already hit the retirement age....so that FDR would have gotten a windfall of appointments. Anyway, here's how FDR put it:

What is my proposal? It is simply this: whenever a judge or justice of any federal court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.

That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice, from the bottom to the top, speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.

The number of judges to be appointed would depend wholly on the decision of present judges now over seventy, or those who would subsequently reach the age of seventy.

If, for instance, any one of the six justices of the Supreme Court now over the age of seventy should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than fifteen, there may be only fourteen, or thirteen, or twelve. And there may be only nine.

There is nothing novel or radical about this idea. It seeks to maintain the federal bench in full vigor. It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869.

Why was the age fixed at seventy? Because the laws of many states, and the practice of the civil service, the regulations of the Army and Navy, and the rules of many of our universities and of almost every great private business enterprise, commonly fix the retirement age at seventy years or less.

The statute would apply to all the courts in the federal system. There is general approval so far as the lower federal courts are concerned. The plan has met opposition only so far as the Supreme Court of the United States itself is concerned. But, my friends, if such a plan is good for the lower courts, it certainly ought to be equally good for the highest Court, from which there is no appeal.

Not a bad plan, except that FDR shouldn't have tried to make it apply to justices who had already hit the age of 70. In other words, FDR might have succeeded if he had made the plan prospective only. The retrospective aspect doomed FDR's proposal from the start.

I can't believe that you support Roosevelt's disingenuous and discredited court packing plan. I totally disagree. The whole plan was a frontal attack upon the Supreme Court as an institution. I'm shocked that you would want to revive such a blatant power-grab by the Executive Branch. It makes no difference whether or not the plan is retroactive. The idea still stinks. If the Founding Fathers had wanted your system, they would have included it in the original Judiciary Act of 1789.

IMO, there is nothing wrong with a Supreme Court that continues the traditions of the past as did the pre-New Deal court. To correct the situation, all the nation has to do is elect presidents and senators who will appoint and confirm justices more to their liking. We shouldn't go for the "quick fix" just because we want immediate gratification.

I have a question for you. You have expressed complete outrage at even the thought of Senators (Webb and Warner - which btw put forward a quite reasonable list) mentioning a list or making one for vacancies that the President will then pick from. In your mind how is that any different from Southwick. Based on all the stories that followed the Southwick confirmation it seems that Lott basically made the nomination. Leslie was Lott's baby not the President's. You rejected everyone on the WW List just because the Senators put forward their opinions not at all based on the conservative credentials of the candidates. How can you reconcile this apparent contradiction in your philosophy?

you want to use an FDR ploy? Please consider the source.

the system our Founders designed has worked pretty darn well. just because the Court sometimes haven't respected that genius doesn't mean we ought to encourage other branches to disrespect it on their behalf (though it is of course within the purview of the legislature to change the number of seats, as it has in the past). I agree with BoBo, I don't see a crisis here.

It looks like no one wants to change the system. But think about this: suppose in a couple years a way is discovered to halt the aging process. Would you really think it's okay for the current Court to sit FOREVER, without any new blood, and without any impact by future presidents and electorates? Would you say, "I want to preserve the Judiciary Act of 1789," even if it means Stevens and Ginsburg FOREVER? And note that the Judiciary Act of 1789 has already been drastically amended over the years.

Regarding Lott and Southwick, I doubt very much that Lott exerted any coercion whatsoever on the White House. I object to Senators coercing the White House to nominate whom the Senators select.

I went to NYC on October 16 for a speech by Justice Thomas. What a great speech by a great Justice. We'll have to exempt him from term limits as well.

To begin with, you postulate a hypothetical that doesn't need to be addressed right now when you talk about an end to aging. The Supreme Court is much more likely at the present time to be killed in a terrorist attack than to live forever due to new medical technology. For that reason alone, something should be done by amendment to solve that problem of massive death first before anything is done to address the issue of immortality.

As far as immortality goes, if that ever occurs, then I think it would be entirely appropriate for Congress to decide upon by constitutional amendment a scheme detailing an age range appropriate for judicial tenure. I don't think such a change, however, should be done by statute.

I am a little disturbed by your disregard for the Judiciary Act of 1789. If anyone knew the original intent/meaning of the Constitution, the elected officials in the first Congress did. I think you start to go down a slippery slope when you begin cherry-picking original documents according to your present day likes and dislikes.

In regards to jtp7 and his comments about Southwick, I agree with his basic premise that Lott chose Southwick and not Bush. It seems clear to me that Lott and not the White House also chose Pickering and Wallace. In a large part, I think both Pickering and Wallace were not confirmed because the White House on purpose avoided going out of its way to help either one. Considering the way in which the White House sabotaged Lott in order to get Frist as the Majority Leader, I think it is entirely likely that the White House allowed Lott to choose the Mississippi nominees and then refused to help him get them confirmed. There is no way anyone can convince me that the White House couldn't have done more to support Wallace. The reason why they didn't is because Wallace was Lott's nominee and not theirs.

Id like to see an amendment that deals with this issue as well. We don't want one president (or acting president if the attack is spread across the branches of govt) replacing all or most of the justices.

My proposal follows.

Each justice should have a list of five names secretly held for their own replacment (made by him/herself). In the event of death by assasination, a pandemic, or an attack on SCOTUS or the US GOVT, this list is made public and the top name (if alive) becomes the replacement WITHOUT the consent of the president or the senate (this to protect the SCOTUS from an unlikely coup from the other branches). If there is a nationwide disaster or attack it is likely that at least one of the people (a professor, a federal judge, or some woman from Texas who was the first at everything but without much court experience) would survive to take over.

In the event that none of the names are alive we're in such sorry shape that SCOTUS will be the least of our concerns. But in that event we switch back to the default of the president making nominations.

What do you think?

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

You present an interesting plan. I don't know, though, whether I like the idea of giving the justices carte blanche to name their own replacements. Who knows the crazy people they might put on their lists? If the names were first pre-approved by the president and senate and in addition met some basic statutory requirements (such as having a clean F.B.I. check, a degree from an accredited law school and some judicial experience), I might feel more comfortable with your idea.

Your plan seems to have the effect of maintaining the ideological balance of the Court, assuming that the Justices will choose replacements that resemble their own judicial philosophy. While that does have some attractiveness for maintaining the status quo, I don't think the American people would like such a scheme. In the event of a catastrophe, it would seem more palatable to simply fill the open slots with COA judges (perhaps the current chief judge) from the circuits chosen by lottery.

I don't favor the FDR-type plan. If you could get bi-partisan support for that, it seems like you'd be better off simply getting bi-partisan support for fixing the current Senate rules, and putting an end to the "Borking" era we find ourselves in now. That would be better than worrying about the potential for senile judges.

And I can't get the picture of a "kids table" at the Supreme Court out of my mind, where the new justices would have to sit until the oldsters die or retire.

The only reason to keep the president and the Senate out of the deal is the perception that one or two branches could conspire to eliminate a justice. Of course this wouldn't happen in our country, but the public perception of judicial insulation from such a conspiracy might be worth while.

If we agree that we already trust a justice's judgement enough to give him/her a lifetime appointment, then I don't have a problem with letting the justice pick his succesor in the event of an attack.

To meet halfway maybe, perhaps the list could be kept classified and investigated as secretly as possible by the FBI.

Also, the president (and perhaps only one other person like Atty Gen or Solic Gen) that made the appointment (not any later presidents) could review the list of replacements before the (now deceased) nominee was selected.

There's a lot to work out in detail, like how the list is kept safe from potential conspirators while being accessible in an emergency where a large part of govt may be devestated.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

I like the idea of a lottery, except that you could end up with 9 justices that are likeminded without any input from the people. This could lead to a constitutional revolution where every hairbrained scheme the left wants would just get jammed down our thoats. There would be little if any check on this power.

Perhaps each party's justices would have a list of back-up justices for justices their president nominated (seperate lottery pools for each party). Problem there is that we might have the perception of conspiracy if, let's say, a Souter met an enigmatic end.

Tough issue.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe

I see a lot of potential problems with the execution of your plan. First, I disagree with you that just because someone is initially confirmed to the Supreme Court that they can be trusted to name a worthy and appropriate successor. What if they are nepotistic and name an unqualified family member as their replacement? How many powerful and/or rich people in the past have designated unqualified people to assume their positions after death? Answer: a lot!

In addition, I assume that the names on an individual justice's list will need to be changed over time and updated as the people on the list either die or become ineligible for other reasons. That means a justice's continuous mental state will have to be examined. While justices may make good or appropriate choices in the beginning, who's to say that their choices may get considerably worse over time as they replace names on the list?

each justice having a list is necessarily a bad idea, but I think the president should choose off that list, as the governors of some states do in choosing a replacement for a departed senator. perhaps in their "advise and consent" role, the Senate could narrow the list from 5 to 3, and then the President picks, or something, though in a crisis I would hope the Senate isn't overly partisan or picky about things. of course, in a crisis, these picks would likely be more akin to recess appointments (see my comment on term limits in the next paragraph).

I also think a lottery among active judges (and/or perhaps senior judges under 75 or 80) would be acceptable, but with a specific term limit (perhaps an unspecified one, such as until such time as the president and senate determine period of crisis is over) as part of the statute.

finally, in the event of the assassination of individual or select groups of justices, I think the President would be ethically obligated to pick a justice of relatively like jurisprudence (and probably, though not for an ethical reason, like age) to the justice he was replacing, to make it clear that such (presumedly) politically-motivated crimes will not succeed in getting the results desired by the criminal.

This is why I would have the list be considered when a president vets his nominee. If the list contains family members that would probably rule out the nominee in the mind of the president.

Updates to the list would be a problem.

"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe