Eric Cowperthwaite has an excellent post up about proposals to reform the judiciary, which I highly recommend reading.
In the post, Eric suggests the following steps to fixing what’s wrong with the third branch of government:
Supreme Court Justices should have set terms, rather than being appointed for life. Thomas Jefferson was one of the first to suggest this.
An excellent proposal which I’ve advocated myself here and here. The rationale for life tenure of federal judges is that it removes them from the pressures that they might otherwise be under if they were subject to reappointment. That, however, is an argument against a system where judges are appointed for fixed terms and subject to reappointment NOT an argument against appointment for a fixed term.
Additionally, I don’t think there is necessarily anything wrong with a system where Supreme Court Justices and Federal Judges are appointed for a fixed term and then subject to reappointment. Systems such as this exist in several states, including here in Virginia, and, on the whole work rather well. To protect the process against being overly politicized, we could have a requirement that to deny a sitting judge reappointment would require a super-majority of some kind — perhaps a 3/5 vote of both Houses of Congress.
On a related note, I would also favor an age limit for judges. Before crying age discrimination, I suggest studying the cases of William O. Douglas, Oliver Wendell Holmes, and Thurgood Marshall — all of whom were physically debilitated at the end of their terms to the point where it is unclear whether they were capable of performing their jobs. The idea that the only way to remove a senile Justice from the Supreme Court is “feet first” is just absurd.
The Justices should be appointed by the separate branches within the government, not just the President, and require the consent of the other branches. I would have 5 from the President, 2 by the Senate, and 2 by the House. The Senate would consent to the appointments by the House and President, the House to the appointments by the Senate.
An interesting idea that I hadn’t really considered before. But heck, as long as we’re cleaning house I’d be willing to give it a try.
The Senate would be appointed by law set by the state legislatures, rather than popular vote. In other words, repeal the 17th Amendment.
As I have said myself, this is an excellent idea. Popular election has perverted the intentions of the founders regarding the Senate’s role in our system of government. My only caveat to this is that, under the current political climate, it is likely that most, if not all states, would provide for popular election of their senators rather than reverting to the 19th Century method of appointment by state legislatures.
If the President, a majority of the Congress in joint session and a majority of the state legislatures concur, a Supreme Court decision can be overturned.
I assume that Eric is referring to Supreme Court rulings on Constitutional matters. Rulings that are merely interpretations of federal law without any Constitutional elements can be overturned by Congress and the President rewriting the law, which has happened on many occasions. With that said, one of the biggest mistakes that has been made in connection with Constitutional law has been the reservation of deciding what is and is not Constitutional to the Supreme Court. Originally, it was believed that all three branches would act to enforce the Constitution —- for example, if a President believed a law passed by Congress to be unconstitutional he should veto it. Instead, the other two branches have abrogated their role in this process to the Supreme Court and we have, I think, been the worse for it.
Impeachment of a justice would only require a 3/5 majority of the Senate, not 2/3.
During the entire history of the United States, only one Supreme Court Justice and eleven Federal Judges have been subject to impeachment. The Supreme Court Justice was Samuel Chase, impeached in 1803 for several charges related to his rulings from the bench. It was a highly politicized battle between the Jefferson Administration and the Federalists, and the Federalists won. The result has been that it is now difficult, if not impossible to remove a sitting Supreme Court Justice from office.
While there are many reasons to keep the impeachment process difficult, the result has been to completely remove the judiciary from any outside pressure whatsoever. In today’s world of judicial activism, the results of that removal are all to plain to see.
The Court must base all decisions on US common law and the US Constitution only. Any decision that cites popular sentiment, or foreign laws or courts, will be considered null and void.
Yes, absolutely yes. This is a dangerous, new form of judicial activism. Relying on modern European law to guide you interpreting the Constitution is to say that the Constitution can mean whatever we want it to.
In the end, none of these proposals will work if it isn’t accompanied by an overall change in the political climate in this country. Both sides of the political aisle need to stop looking at the Court’s as a forum where they can obtain results that would be denied them if they proceeded by the democratic process. The Courts do not exist to enforce one person’s idea of social, economic, or moral justice. They are supposed to exist as an impartial forum to apply the law to the facts and achieve, one hopes, a just result. As someone who practices in that system on a daily basis, I can tell you that this does not occur as often as it should.
Oh and, by the way, after we’re done reforming the Third Branch of government, can we also get to work on fixing the other two ?
Update: Eric has a second post up today expanding on the ideas I commented on above. As with the original post, it is highly recommended reading.
Related Posts:
In Defense Of Judicial Restraint
Linked with The Political Teen and Point Five
