Age shall weary them, and the years condemnPosted: April 3, 2012
For all of their esteem as the “swing” members of the court, the reputations of both former Justice Sandra O’Connor and current swingman Anthony Kennedy should forever be diminished by their having made up the majority. As John Paul Stevens said at the end of his memorable dissent:
…[T]he majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
Fallows’ suggestion of term limits or a compulsory retirement age seems perfectly reasonable to me. I know full well that at my age I shouldn’t be permitted to operate heavy machinery, use sharp knives or radically alter the political, social and economic landscape by means of arbitrary and partisan judgments handed down with no respect for either established precedent or good manners.
And yet Clarence Thomas, if he so wishes, will be on the Supreme Court till the day he dies, no matter how decrepit or deaf or bug crazy he becomes, sitting on his fat arse day in and day out on the public dollar, catching the odd three hour cat nap between intermittent bouts of comparing toy soldiers with Sammy Alito, giving Roberts wedgies, giggling behind the bench because Scalia wrote “boobs” on every page of his case brief, and conspiring to destroy the fabric of society.
I don’t dispute that extreme age sometimes brings great wisdom, or that compulsory retirement would have robbed us of the later careers of many fine jurists – Brennan and Marshall and Stevens spring to mind. Nonetheless, and in the absence of any statistical evidence to support them (because it’s time for a drink and I can’t be bothered finding it), I think the arguments for the change are good ones.
If the only effect of mandatory retirement was ridding America of the ridiculous spectacle of judges defying age and illness and boredom merely to keep a seat warm until there is a new President, then it would be worth it. We would still, happily, be able to gossip about which judge looks ill, which is always such a satisfying discussion to have over several bottles of scotch after an exhausting day trying to peg Skittles at Kennedy from the public gallery and not get caught.
The Supreme Court needs new blood, new ideas and, frankly, the odd judge who was born after the Eisenhower administration. Courts should (as much as possible) reflect the aspirations and the diversity of the society they serve, which is a little hard when three quarters of the bench doesn’t know or care what IUDs or DVDs or CFCs are.
I suspect that mandatory retirement would assist in this regard, not least because every year more and more women (pdf) (and with any luck more non-white, non-straight, non-bigoted persons) are managing to lie, cheat and backstab their way into the corner offices and onto the bench (they are lawyers, after all). There’s a good chance that some of those new judges might come with a uterus and a conscience attached.
Of course, changing the rules for the Supreme Court would require a constitutional amendment which, even if it got up, would probably be held to be unconstitutional by a 9-0 decision of the Supreme Court applying the doctrine of Faciens quod volo, canes feminam. Still, a girl can dream.
Fallows also has up a number of fine posts on the filibuster, including this good summary of its history, which he ends with this:
For now this last thought, from a reader with family ties to George Norris, the long-time “progressive Republican” U.S. Senator from Nebraska:
[My ancestor] Senator Norris filibustered the old fashioned way, as it were. (His stand that no politician should invest in any asset except US bonds to avoid any bias also contrasts sharply with politicians today.) I did want to point out that, if the Democrats lose the Senate, then I predict that the Republicans will simply change the rules*, thus eliminating the problem. At that point they will cheerfully switch sides, and then ram it down the throat of the Dems. My favorite line of Krugman’s is that the Republicans “are serious men”, by which he meant that they played a tougher, and longer, game than their opponents.
* To clarify, changing rules during a session requires a 2/3 vote, but it is generally understood that every two years, at the start of each new Congress, each House can set rules for itself by majority vote.
The Republicans will not only change the rules, they will boast about how they got rid of the filibuster those dreadful Democrats were always using to subvert the will of the people, at least until they lose control of the Senate again, at which time the filibuster will become a vital tool for liberty which those dastardly Democrats have been suppressing.
Because Republicans are perfidious, pernicious pricks, and lying is what they do best.
Image: A Judge Going to Court – Thomas Couture (1815-1879)