It’s obviously in poor taste to wish cancer on anyone, regardless of the reason. I won’t defend that kind of language. But one side effect of lifetime appointments to an increasingly politicized Supreme Court is that the only way people can see for the Court to change from ruling one way to another is if one of the Justices dies or resigns for some reason. New Hampshire Tea Party member Mike Malzone wants all five of the Supreme Court Justices who upheld ObamaCare to get colon cancer. In his case, he denies that he wanted them to die; he just wanted them to suffer. Yet, the sentiment is all-too-natural. Millions of Americans are contemplating issues like abortion rights or the ruling on Citizens United and wondering if anyone on the Court will die and allow a new appointee to the Court to change the law. I think it’s a pretty unhealthy situation.
There’s even a kind of gallows logic to the appointment process. I can easily see President Obama striking a bargain with Republicans on the Senate Judiciary Committee. He would, for example, agree to appoint someone in their seventies in return for enough support to defeat a filibuster. The ideology and record of the appointee might be entirely secondary to the actuarial reality. For the Republicans, better to have a liberal on the Court for a maximum of twenty years than a moderate who might serve for 40 years.
This is a sick and twisted way of thinking about the highest court in the land, but the logic is so compelling that most people find it irresistible. That these are lifetime positions is only part of the problem, of course. The extreme polarization of the parties is an even bigger factor, because too often the Justices just line up predictably along Democratic/Republican lines. With the retirement of Republican-appointed Justices John Paul Stevens and David Souter, this has never been more true. I think this is why a lot of commentators celebrated John Roberts’ surprising move to uphold the Affordable Care Act. Any sign of independence is welcomed.
Yet, anyone who wants to see Citizens United overturned must await the death of one of the conservatives on the Court, which is a corollary for those on the right who want the ObamaCare ruling overturned. Most people are too polite to say this out loud, and certainly too decent to wish suffering on anyone. But we might want to consider a retirement age or a 20-year maximum term for Supreme Court Justices. It’s not healthy to have a nation of people waiting around and sometimes openly hoping for our Supreme Court members to die. It’s not good for our morals.
A mandatory retirement age doesn’t change the basic problem. We have an unhealthy political climate in this country and the reasons for that will not have changed with some new retirement rule. Thus, instead of wondering when someone will die or retire, everyone will KNOW when every justice’s mandatory retirement age is, to the day, as soon as that person takes the bench. This will give rise to a whole new series of calculations and machinations.
The Democrats should never have let fools like these on the court in the first place. I remember with Alito and Roberts, there was scarcely a whimper. There is such thing as a jurist who is NOT primarily political, and that should be an unwritten requirement. The GOP wanted extreme ideologues like that on the court, and they sure got them.
And as many have pointed out, these guys have demonstrated time and again that many of the answers they gave to questions in confirmation hearings were “disingenuous”, to say the least.
The “original sin” was nominating Bork. The GOP tried to pull a fast one, and they have never forgiven the Dems for rejecting Bork. But you know what? Bork was absolutely not SC material, he really was a right-wing ideologue.
We’re not going to get anywhere until the Republican party either ceases to be a major national party, which in my view is a real possibility, or else becomes more moderate, which is also a possibility — but don’t hold your breath.
However, I do think that the extreme furor around the ACA will not last long at all, especially after everything kicks in in 2014. Too may people will be helped by it.
The GOP is making yet another big mistake if they think making the ACA a campaign issue at this point is a winner, It is absolutely not. Obama will bat that baby right over the fence.
You know the old trick where a party of soldiers, outnumbered, run around, first behind this rock, then in that grove over there, then behind a house somewhere else, shooting all the way, it looks like there are more of them than there actually are? That’s today’s GOP. They make a hell of a lot of noise.
I’m reminded of a point that occurred to me the other day here: didn’t the ABA have a customary role in vetting and/or suggesting a list of SCOTUS candidates when there was an opening? and W Bush threw them out in much the same manner he threw Helen Thomas to the back of the press gaggle.
Thanks to Citizens United money, I think the GOP is going to be able to buy a lot of life support for the foreseeable future. Kinda like whatever extreme and sophisticated medical measures that are keeping Dick Cheney alive: dude’s well past his expiration date and living on borrowed time, but with repeated pyrrhic expenditures (in terms of money, medical labor, and one organ donation that would have done a lot more good elsewhere), he’s managed so far to push back the date a little bit.
Maybe he’s banking on living just long enough for a medical miracle that will keep him alive forever. To me, that’s what money is doing for the GOP: it buys them time, which they hope is just long enough to establish a permanent stranglehold on American political power. Citizens United, and the ever-expanding war on Democratic voters and unions and you-name-it, extends their shelf life just a little bit further. Maybe just far enough.
We have an unhealthy political climate….
That is exactly the problem and the Catch-22 is that the Supreme Court has made it easier for money to keep that political climate unhealthy.
The only counterbalancing power is that of the people, who remain divided and every movement that tries to bring them together instead of separating them gets repressed.
That is a necessary but not a sufficient precondition. The purging of the remaining Blue Dogs from the Democratic Party is one of the other preconditions.
Then a pre-precondition of purging the Blue Dogs is a fundamental realignment of what motivates voters in their states and districts.
It’s always been an irritant to me when liberals and progressives hail the 2010 elections as a purge of the Blue Dogs from our ranks.
That wasn’t a progressive victory, that was a logical outcome in regions where progressive politicians can’t win office during an election cycle dominated by right-wing rage. To be a Democrat in certain areas at that time was like being at the wrong end of an ethnic cleansing, electorally speaking. In places like that, it took a Dan Boren to hold onto office while still identifying as a Dem.
Purging the Blue Dogs is going to accomplish precisely squat until Dems figure out how to get rid of this case of political cooties–scabies–that the GOP has so successfully associated with them in the red state regions.
That is called “changing the political culture”. And it is associated with the control of the media and the cultural institutions in those red states.
But the change is not as big as it seems. In 2010, Tom Coburn beat Jim Rogers 70% – 26%, with two independents running. The margin was roughly 500,000 votes in this “landslide”. This is the total voter registration for Oklahoma as of April 30 this year: Democratic 942,388; Republican 850,560; Americans Elect 5; independent 234,141. That’s 2 million registered voters. Roughly 50% of registered voters turned out in 2010. By the numbers, Democratic turnout was 28%. Republican turnout was 84%. Now you can argue that some of that turnout was crossover Democrats and some was from those 234,141 independents. But Democratic performance was miserable. There is more than just the “cootie factor” going on in Oklahoma.
To start with, here are the counties without listed county Democratic Party officers: Choctaw County, Cimmaron County, Cotton County, Greer County, Harmon County, Jefferson County, McIntosh County, Noble County, Ottawa County, Pushmataha County, Roger Mills County. That’s 11 out of 77 counties.
In 2010:
Choctaw County had 1304 votes for the Democrat (32.8%)
Cimarron County, 108 votes (11.0%)
Cotton, 468 votes (26.3%)
Greer, 410 votes (26.8%)
Harmon, 190 votes (26.5%)
Jefferson, 548 votes (31.4%)
McIntosh, 2012 votes (33.0%)
Noble, 686 votes (17.4%)
Ottawa, 2107 votes (30.6%)
Pushmataha, 1047 votes (31.5%)
Roger Mills, 188 votes (14.4%)
That 9000 voters that the Oklahoma Democratic Party has decided are not important enough to spend the effort to get them organized into a county party. Likely the excuse is “we don’t have the resources”.
Energetic party members bring resources. One suspects that the Oklahoma Democratic Party leadership does not want too many energetic party members who might rock the boat. And so the party withers, as it has in a lot of Southern states. And when the old pols die, there is nothing to replace them. They have been so smart they haven’t left a legacy.
It’s more than just “cooties”. It is the fact that the national party has written off small red states and the state party has written off difficult counties, and too many counties have ossified county organizations that exist primarily for patronage on the off chance a Democrat should actually win.
Thanks THD for a time-consuming and thoughtful reply. You make a lot of undeniable points. I have to admit, I don’t know how the state party apparatus differs from the national leadership in the Democratic party, but I know that I’ve been fairly disgusted with the OK party to the extent that I’ve been aware of them.
One memory that sticks in my head was when Gary Condit had his Connie Chung interview, and the reaction went locally to Jay Parmley, the OK Dem Chairman. Parmley was the class president at OU when I graduated, and the circumstances under which he got elected were pretty crappy. He threw Condit under the bus in his little interview, and that kinda sealed the deal for me. Just another weasel with slicked-back hair twisting in the wind of public opinion and afraid to call bs when appropriate.
Every now and then I mean to check out what Parmley’s been up to, wonder if he’s run for public office yet, but if that day comes, I have a standing commitment to stick a pencil in his eye before ever casting a vote for him.
I’m not actually going to do that, just saying.
And the lack of Democratic readiness at the state, county and precinct level to me is just another indication of the sickness of a party that rewards Rahm Emanuel at the expense of Howard Dean. For instance, I hear they’re still trying to get Tammy Duckworth elected to something or other, despite all the millions dumped on her campaigns that might have been better spent in a ton of other races.
It’s more complicated than that. Oklahoma is a state where people are registered Democratic out of sheer habit and family tradition that stretches back to the days when Woodie Guthrie was actually respected. My family (on my dad’s side) have been Democrats ever since who knows–I hate to say it, but probably they never caught the Dixiecrat fever when it was happening and just missed the wave.
The point is, Dan Boren is ironically the epitome of an Oklahoman Democrat: a Republican. Not quite a tea-partier, but probably keeps a smirking mustache in his suit pocket for special occasions. Actual Republicans from OK are even weirder than Coburn and Inhofe, and that’s saying a mouthful.
But I get your point, and thanks for taking the time to spell it out: we lose too many battles simply by failing to show up. We may have local disappointments in our state parties, but it’s no excuse for giving up the game.
I remember feeling horrified when I heard Tony Snow had cancer back in ’07 or whenever it was. I thought it was liver cancer at the time but after checking the record it appears to have been colon cancer; whatever. I’ve lost enough friends and family to cancer to know what it means to wish it upon someone, and I can only assume that this Malzone person either doesn’t have any such personal experience, or alternatively is psychopathic and thus unable to understand or imagine the pain of others.
Cancer is bullshit. Fuck a bunch of cancer. I wouldn’t wish it on the worst person I ever heard of. I wouldn’t wish it, period.
Sorry, not intending to get carried away with the sideshow, I get the point of the post. I think in a lot of ways the SCOTUS appears too have been given less thought when the heavy lifting was being done during the framing of the Constitution.
I don’t know what the average lifespan was around the turn of the 18th century (or was it the turn of the 19th? I don’t know how these things are reckoned, either) for members of an economic class likely to ascend to a high government judgeship, but it’s easy to assume that it probably wasn’t 80 or 90, and in fact far lower.
Whatever it was, somewhere in there is a huge oversight. Nobody would expect an 80-year-old candidate to run for and win the Presidency, for instance, but maybe it’s possible that the Framers weren’t envisioning anyone wanting to retain a SCOTUS appointment for as long as most of them do. There’s probably a book on it out there somewhere.
And yet it’s pretty much impossible not to think that way under the present system. Wingers were praying for Earl Warren’s demise, and that’s not a one of a kind case. I don’t wish death on anybody except when the anger approaches madness, but can’t deny taking some reprehensible comfort from Scalia’s pastiness, Thomas’s sluggishness, Kennedy’s doddering.
It’s like being in the middle ages watching for the death of kings and courtiers — a sickening pastime that has no place in a decent democracy.
Yeah, and that seems to be the main point that Booman is making in this post.
I agree with this sentiment.
Washington set precedent that presidents should only server two terms and for over a 100 years, all of his successors followed along. Of course once Roosevelt ran and won 3rd and 4th terms, it was not long and the constitution was amended to limit presidents to two terms.
There is no reason not to make a change to the consitution to limit the length of service of a Supreme Court justice. Your point about court watchers having a gallows mentality should be expanded to include the point that from inside the court, justices likely hang on a lot longer than they would normally awaiting a president to be elected more in tune with their political viewpoint. Should Obama win his second term, is their any doubt Scalia, Thomas or even Kennedy despite their age, would hang on not matter their health or even their desire to retire until 2016?
Alas, I think we are too polarized at this moment in time to amend the constitution because the right would be afraid of losing that political advantage that they have held for generations now.
There is always impeachment.
Any of the justices who participated in Bush v. Gore majority still might should look over their shoulder.
But then, “Impeach Earl Warren” was the cry that got the Southern movement conservatives motivated to vote for Nixon. And impeachment of Warren was never started, but a bipartisan impeachment resolution for Richard Nixon was scheduled for a (likely successful) vote on the day Nixon resigned. Kingmaker George Herbert Walker Bush gave Nixon the shove.
The trouble with impeachment is that it boils down to politics instead of justice, at least if you’re the modern GOP. If you have the votes to carry it out, then it becomes a matter merely of finding a pretext, much like they’re doing with Fast and Furious at the moment.
So why can’t the Dems operate politically on impeachment for once.
They let Nixon off the hook instead of letting all the dirty laundry come out in a formal setting and disgracing him beyond rehabilitation. They took a pass on Bush and Cheney. And they failed to deal with the Bush-Cheney folks who might be part of a future Republican administration. In all of these the excuse was to “not divide the nation”.
That’s the question we’ve all been asking ourselves since the Dems took the House in ‘006, isn’t it? Who knows why? All we know is that it ain’t happening, then, now, or ever.
And of course it goes waaayyy beyond that. They installed an entire new culture in the CIA and elsewhere in the intelligence field, as I understand it. And let’s not talk about evangelical xtian penetration in the armed forces and at the Pentagon.
Impeachment is a cudgel that only works for people who genuinely intend to use it. Democrats don’t, which is one reason why I’m no longer a member of the party, although I still support them for lack of a better option.
And they failed to deal with the Bush-Cheney folks who might be part of a future Republican administration. In all of these the excuse was to “not divide the nation”.
You darn well know why. Any investigation would implicate people like DiFi, Jane Harman and other Democrats who voted for war with Iraq. Because they went along with the program because they are just as blood thirsty, and into war-profiteering, as the GOP.
The Dems fatal flaw is that they care more about what’s best for the country than they do about winning the ideological war with the Repugs. I know it doesn’t seem like it sometimes, but that is their problem. Because the Repugs have proven that they are perfectly willing to let the nation melt down if that’s what it takes to get their way.
Imagine how Lincoln felt.
Instead of a mandatory retirement age, I would say that every 20 years a justice would have to be re-nominated. The justice could serve for “life” but needs to be reconfirmed from time to time.
That’s probably the best idea I’ve heard yet on the whole SC justices live forever problem.
Thanks.
The bonus is I don’t think it would require a Constitutional Amendment to do it, I might be wrong about that though.
This makes sense and has made sense for some time. Only thought: the length of the justice’s term should be relatively prime to other terms (house, senate, presidency), so it should be 25 years rather than 20. That way it won’t automatically fall into a cycle.
It’s not the thinking that’s sick, it’s one of the really bad and stupid parts of the Constitution that never should have seen the light of day. But of course it’s too wonky to ever generate the passion needed to get an amendment passed (another really bad and stupid part of the Constitution). The grotesque death watch we suffer was inevitable from the very beginning.
Still, the core of the problem is not the lifetime term. It’s the way justices are appointed. If there is one case where Congress should be in charge, not the president, it’s judicial nominations. Nothing guarantees self-serving partisan scheming like making judicial appointments a central point of presidential politics. If we weren’t in a stranglehold by an essentially unchangeable Constitution, we could put Congress in charge of getting 60 percent consensus in both houses for their nominees. Give the president veto power, overridable by a 61 percent vote in both houses. Seems to me this would force appointment of the kind of bland, open-minded justices that judges are supposed to be.
There are a lot of good arguments for the lifetime term: do we really want to add justices to the revolving lobbyist door we get with all other aspects of political players? As mentioned above, a known end-of-term would have the plotting going on for years ahead of time. Maybe a lottery system where one justice was chosen at random every 7 years to face renomination is worth thinking about.