Lifetime judicial appointments are almost uniquely a US artifact to monarchical rule. We can fix this and we must fix this, as it makes our judicial system prone to political manipulation as we see today. Should abortion rights depend entirely on whether RBG survived to Jan 21?
Water Update: I am still working on the NM Water Law post but it should be published tomorrow or at the latest Thursday. Thankfully, I am able to get input from one of NM’s foremost water experts, Norm Gaume, who is helping me translate arcane and complex NM water law into something like lay terminology. Along the way, we will be providing specific solutions.
Bottom line, the state is operating as if it were 1900 when we had a sparse population, plenty of water, and no climate change to cope with. What’s more, NM water is not “ours” to use at will. We have compacts with other states and agreements with tribes and pueblos to deliver groundwater as defined in legally binding compacts. Our water laws make it nearly impossible to manage this task and we are in arrears in a very significant way to Texas. We will try to unravel this puzzle tomorrow or Thursday. Stay tuned for this important discussion.
Signs of a Possible Coup are Everywhere: What Can We Do?
I get emails daily asking what we can do if at 11 pm on Nov 3, Trump enjoys 1/2% -1% leads in Michigan, Wisconsin, Texas, Ohio, Pennsylvania, Iowa, North Carolina, and Florida with millions of mail-in or early ballots to be counted, ballots that will be 80%+ Democratic. When counted those states would all go blue along with all of their electoral college votes and would lead to a landslide of LBJ – Goldwater proportions. Yet if Trump were declare that only votes counted by 11 pm Nov. 3 are legitimate, what then? Trump would then declare a win and we’d be in court. Need I mention the high likelihood of another conservative justice on the Supreme Court, one who in the vetting process was asked: “Does the Constitution declare that only votes counted on election day are legitimate?” Gulp.
“How to Beat an Election-Related Power Grab” is a two-session national workshop led by George Lakey, with Zein Nakhoda. The workshop will share the most important things to know and practice in order to be ready in the event of a coup. Registration for the Sept 23rd and Sept 30th training is now closed. If you registered, you will receive a Zoom link shortly. Roxanne and I are registered, will be participating in the first round of training, and will report on what we find out.
Register for the workshop on October 1st & 6th here.
Rethinking Lifetime Judicial Appointments
The NY Times publishes a really interesting email bulletin,“The Morning,” a daily feed with brief pieces on important topics and with links for more expanded discussion. Each day “The Morning” features one “Idea of the Day” and today’s was compelling and relevant to everyone’s anxiety about RBG’s passing and the looming war over who appoints her replacement. Certainly Trump-McConnell will seek to nominate some 40-year-old arch conservative, saddling us with 40 years of a conservative court that could reverse Roe v Wade, Brown v Board of Education, the Voting Rights Act, and any of an almost limitless constitutional protections we take for granted. With no further ado, “Kings Queens & Lifetime Judicial Appointments” from “The Morning.”
Kings and queens have lifetime appointments. So do popes. But in advanced democracies, lifetime tenure for major government posts is exceedingly rare. Among the only examples: federal judges in the United States.
The Constitution established lifetime judicial appointments to insulate federal judges from undue influence from politicians and the public. “Life tenure allows judges to make hard and potentially unpopular decisions without fear of retribution,” Amy Steigerwalt of Georgia State University has explained.
But lifetime tenure has downsides. It introduces an element of randomness to the makeup of federal courts, causing them to be influenced by judges’ life spans as well as election results: Should the future of, say, abortion policy really rest on whether Ginsburg lived to age 87 or 88? Lifetime tenure can also create pitched political battles because the stakes are so high.
““That this much depends on the life and death of a single person,” Heinrich Wefing, a journalist at the German newspaper Die Zeit, wrote this weekend, “brutally and clearly shows the antiquated nature of the almost late-monarchical and certainly dysfunctional U.S. constitution.”
From The New York Times: “The Morning, September 22, 2020”
Some legal experts have instead suggested term limits. Others argue that judges should have mandatory retirement ages, as they do in Britain. Most legal scholars agree that mandating any such changes would require amending the Constitution, which conditions judges’ tenure only on “good behavior.” And as long as one political party thinks the current arrangement benefits it, as Republicans do now, change will be difficult.
The New York Times: “The Morning”
We offer some other reading on this topic below and then ask you: What do you think? It is highly likely Trump and McConnell will succeed in making this appointment. What can we do?
New In Brief: Our Court System & How It Could be Fixed
We offer an article asking if Democrats should pack the court, one outlining how they could, and one on why they won’t.
- From New York Magazine: “Should Democrats Plan to Pack the Courts in 2021?”
- From MSN: “How Democrats Can Pack the Courts in 2021”
- From Bloomberg: “Democrats Won’t Pack the Court in 2021: Here’s Why.”
In solidarity,
Paul & Roxanne
Categories: Election, Political Reform & National Politics
So true. Thank you for exposing this critical flaw in our democracy.
Thanks very much, Paul, for the piece on lifetime judicial appointments. As you say, it is a leftover tradition. The rationale for it set forth in the professor’s quote is sound; isolate them from corruptive personal influence. However, the manner in which federal judges are appointed creates another problem: political partisanship and ingrained ideologies that, with the lifetime appointments cannot be remedied. To fix that problem, we need to amend the constitution to replace the procedure of nomination by the president and “advice and consent” of the Senate. When the framers adopted that procedure to avoid too much control by one government branch, they had few if any alternative choices. There did not exist at the time any law schools in this country. Today there are thousands of constitutional law professors, lawyer bar associations, judicial associations, a huge body of experts trom which an independent, nonpartisan commission could be created. That is a far better method and would take a lot of the politics if not all out of the equation. An alternative to term limits would be limited appointments with periodic performance reviews by the same or a similar body where poorly and under-performing judges would not be reappointed.
Also to consider is that when the constitution was written people didn’t live to 80 or 90 years old!
Thanks. It is very difficult to change the constitution. The power for change is in Congress and state legislatures. I have become so impresses with Bloomberg’s consistent strategic strategy that I just began my subscription. You are smart to read it.