Thursday, February 02, 2017

Judge Gorsuch, Life Tenure and Madness

By Eric Segall

When Judge Gorsuch clerked for Justices White and Kennedy, virtually no one had cell phones. Facebook was a decade away from starting. The Atlanta Braves would go on and win 12 more divisional titles but sadly only one World Series. President Clinton had not yet hooked up with Monica Lewinsky and President George W. Bush wasn't yet Governor of Texas, though he did own the Texas Rangers. Citizens United v. FEC, District of Columbia v. Heller, and Shelby County v. Holder, not to mention United States v. Windsor and Obergefell v. Hodges were all fifteen or more years away. My twenty-five year old daughter was two years old.

Now Justice Kennedy and soon-to-be Justice Gorsuch will be colleagues. The clerk and the Justice together as colleagues. This is madness. Justice Kennedy was the most important judge in America back then (yes Kennedy, not Justice O'Connor), and he is still the most important judge in America today (by far). The year 1993 was four years after Justice Kennedy joined an opinion that seemed to suggest that Roe would be overturned and one year after he pulled back from the brink. I actually like Justice Kennedy because he doesn't pretend text and history drive his decisions. He is the most transparent Justice on the Court. I hope Judge Gorsuch is a Justice like Justice Kennedy (best liberals can hope for). But this is still madness.

Our Supreme Court Justices are the only judges in the world who sit on a democracy's highest Court for life. The political makeup of the Supreme Court is determined mostly by death, illness, or politically timed or ill-timed retirements. Had Justice Thurgood Marshall thought Bill Clinton would win the Presidency, and had he retired just a bit later, Clarence Thomas would not have made it to the Court. There would be no Citizens United, Heller or Shelby County. This is madness. Fixed terms with salary for life provide all the independence our Justices need.

Many thoughtful folks are suggesting that one Supreme Court slot is small potatoes given all the harmful acts of the less than two weeks old Trump Presidency. I sympathize with that idea. But if Judge Gorsuch serves as long as Justice Scalia, he will be on the bench in 2047. If he serves to the age of Justice Stevens, he will be on the bench in 2057. This is madness, and something needs to be done about it.


Joseph said...

Why is it madness? Will the Cubs be on a winning streak in 2047?

I appreciate that you didn't regurgitate all the old arguments but if this one decision by Trump is the longest lasting you should love that. I am wary of time limits for a number of reasons, including the concern it won't fix the problems it is intended to fix as a new and perhaps worse political reality is established. To say there would be no Citizens United or Shelby County under the narrow circumstances you describe (an apt hypothetical on Groundhog Day) does not mean an alternate reality with term limits would have precluded such decisions, nor permitted any number of decisions that liberals prefer. While that may be okay, it doesn't address whether term limits would do net good.

Joe said...

There were some long terms for justices even back in the day (Marshall/Taney served in a sixty plus year span) but curious if someone did the math on the average term. Just looking at the mid-20th Century, only a relatively few (such as Black and Douglas) had real long terms. The terms are starting to uptick though a good compromise older pick (to throw out a name, Merrick Garland) could help temper that.

I would be fine with a term limit of 15-20 years with some system where they can first serve in lower courts and/or do ala Souter work p/t there after their service or whatever. State courts have retirement ages and that might work after a span of years. How much this would change the dynamics of things by itself is unclear but it's one of the benign/fairly uncontroversial things like changing the strict natural born citizenship rule that actually might get bipartisan support.

Maybe in a more sane era.

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