I know I said before that I would not use this as a platform to espouse political views and I promise you, I will keep to my word. Although this post does have a smidge of politics in it, just a mite bit. But it was too much of a coincidence that I couldn’t look past it and needed to give comment. The timing of the Elena Kagan Supreme Court confirmation hearings in conjunction with my recent reading of “The Rule of Nine” by Steve Martini was too interesting to resist.
The Supreme Court selection process is flawed. Heresy!!! How can he criticize an institution that has been in existence for almost 240 years and which governs his very profession? How can he take issue with the institution that gave us “Brown v. Board of Education” and “Roe v. Wade?” It isn’t the institution itself, it is how the judicial officers are selected.
The Supreme Court should be immune to political influence and it isn’t. It should refrain from involvement in party affairs and it doesn’t. It should be a bastion of fairness and clear legal thought, and I am concerned that it isn’t. I think this is attributable not only to the selection process, but also the lifetime tenure of its members.
Let me state this first. I am not a Constitutional scholar. I have not studied and analyzed the actions of the Supreme Court to great extent, and I certainly have not investigated whether any of my assertions hold water. This is strictly my lay analysis of the situation.
But this is what I think is wrong. A President who also controls the Senate can pad the Court with his/her own appointees which can create not just a ripple-effect for subsequent generations, but a tsunami-effect. Consider this: with some degree for error, political pundits can estimate when certain Supreme Court judges will retire. Remember, their retirement from service is at their own discretion. There is no mandatory retirement age; no specific date on which a judge’s tenure will end. So the judge can retire or stay on the bench for as long as he/she wants. And the judge can then determine the appropriate time for retirement based on the President’s political party, even if the judge has outstayed his/her welcome and lost any judicial effectiveness. Did you follow that? I will state it much more succinctly:
A Supreme Court judge could theoretically stay on the bench until the President is elected from his/her political party so that the judge’s replacement will also be from that political party. A conservative judge can wait to retire until a republican president is elected.
And we have seen the tsunami-effect; it has been cycling through for years. Remember the issue with President Roosevelt in 1937? He tried to increase the number of Supreme Court justices so that he could put politically friendly judges on the high court to support his New Deal program? I always thought that the Supreme Court judges were blue-hairs whose legal acumen and competency increased by virtue of their gray hair. Nowadays, however, it seems that the Supreme Court nominees are getting younger and younger. Why, do you ask? Because they can then stay on the Court longer! And they can create tremendous problems for the opposite political party.
Consider this: Elena Kagan is 50 and Chief Justice John Roberts was 50 when he was appointed. By comparison, Thurgood Marshall was 59 when he was appointed and Chief Justice Earl Warren was 63. Not only are the judges being appointed at younger ages, the life-expectancy in the 21st century is longer than it was 50 years ago.
I could go on and on but I won’t because I have already gotten too long-winded as it is. I will leave you with this:
“Because of the life-time tenure conferred on members of the high court, and the fact that these nine justices held the final world on most if not all of the social and economic controversies confronting the country, it was the one controlling point that could alter the long-term direction of America.” — Steve Martini
So given the amount of power that these judges have, doesn’t it bother you that they are not immune to political pressure? Don’t they feel some loyalty to the party that appointed them? Don’t they feel some pressure from their party to stay on the bench until a favorable President is in office? Do you really want the Supreme Court subject to these types of influences?? And it isn’t like we can get rid of them if we don’t like their opinions. At least we get to elect a new president every four years. Some judges we might be stuck with for decades. Judges who will be crafting judicial theory for our children’s children. Wow, that is a huge responsibility. Good thing politics won’t play a part. Oh, wait…