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No More Supreme Picks for Bush?

According to Roger Alford at Opinio Juris, Jan Crawford Greenburg does not believe there will be another Supreme Court opening while President Bush is in office. Speaking at Pepperdine, Greenburg commented that, based upon the interviews she conducted for her book, neither Justice Stevens nor Justice Ginsburg appears ready to retire. Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."

myalterego:
I wonder how one fights for Justice Kennedy's soul. Perhaps like a Roman gladiator? Or maybe like a Massachusetts Minuteman facing the Tories? Or maybe a Ouiji Board?
2.2.2007 12:09pm
andy (mail) (www):

Jan Crawford Greenburg does not believe there will be another Supreme Court opening while President Bush is in office.


Isn't Stevens like 86 or something? Saying that Stevens won't retire is one thing; saying there won't be an opening is another. Of course, I hear Stevens still plays tennis, so sounds like there are no signs of slowing down, but you never know.
2.2.2007 12:15pm
Anderson (mail) (www):
Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."

Sounds a bit like fighting for democracy in Iraq.
2.2.2007 12:15pm
VFBVFB (mail):
Stevens is 86 years old. While he might not intend to retire, there is the possibility that medical conditions might force the issue.

Incidentally, what is the legal procedure to remove a judge who is alive, but either unconscious or has some other medical condition that makes him or her, and as such, physically unable to perform?
2.2.2007 12:15pm
Virginia:
Viagra.
2.2.2007 12:17pm
David M. Nieporent (www):
Incidentally, what is the legal procedure to remove a judge who is alive, but either unconscious or has some other medical condition that makes him or her, and as such, physically unable to perform?
Perhaps The Pelican Brief way.

(Impeachment would be the only actual way, but I wonder if that would seem unseemly, since most people associate that with accusations of wrongdoing.)
2.2.2007 12:20pm
Thief (mail) (www):
Cue Don't Fear The Reaper. And cowbell. More cowbell.
2.2.2007 12:23pm
asdfjkl; (mail):
If the opening didn't happen in the next few months, I doubt the Senate would let a pick through anyway. (Even if they did, the pick would be absolutely unacceptable to the far right.)

I think both sides would prefer to take their chances on winning the next presidential race.

This would make the race really interesting, as a SCOTUS pick would be visibly on the line! (All the scary political ads would be exactly right for once.)
2.2.2007 12:26pm
VFBVFB (mail):
David M. Nieporent:

But being in a coma is not a "Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article II, Section 4 of the Constitution. Of course when the constitution was written, I do not think that people could be in a coma for years. I suppose that had that been a possibility, they might have added that the impeachment process could be used for medical reasons, but that's speculation.
2.2.2007 12:29pm
asdfjkl; (mail):
And if a Justice was in a persistent coma, I think Congress would enlarge the Court by one Justice and let the President fill the seat.

Then when the comatose Justice finally died, Congress would eliminate the position.
2.2.2007 12:33pm
lucia (mail) (www):
asdfjkl,
Congress might increase the number of justices if they wanted to let the President fill a seat. I don't think that would happen anytime soon.
2.2.2007 12:36pm
HokiePundit:
asdfjkl;

What if the comatose Justice woke up?
2.2.2007 12:37pm
asdfjkl; (mail):

What if the comatose Justice woke up?

Errr...he would be quietly 'taken care of'....?
2.2.2007 12:39pm
Mark Field (mail):

I wonder how one fights for Justice Kennedy's soul. Perhaps like a Roman gladiator? Or maybe like a Massachusetts Minuteman facing the Tories? Or maybe a Ouiji Board?


Probably more like The Devil and Daniel Webster.
2.2.2007 12:45pm
Pete Freans (mail):
Justices Stevens and Ginsburg will make sure to work until the 2008 election results, even if they have to crawl up the courthouse steps on all fours.
2.2.2007 12:50pm
Houston Lawyer:
With whom is he fighting for that soul? Was is secretly pledged to Marge Simpson years ago? It seems to me that the Grim Reaper is at least as likely to determine the next vacancy as is a member of the Court.
2.2.2007 12:51pm
Bored Lawyer:

Incidentally, what is the legal procedure to remove a judge who is alive, but either unconscious or has some other medical condition that makes him or her, and as such, physically unable to perform?


Although somewhat off-topic, can we widen this a bit. How about removal of judges who are simply, as the British say, past it?

I just yesterday was speaking with a partner in my firm about several superannutated judges. At one point -- say 20 years ago -- they did a highly competenet, even admirable job as federal judges. Today, however, age has taken its toll. They forget things, lose track of what is going on in the case, and generally can be very difficult and unpredictable to deal with.

I once appeared before one in a case in which we had engaged in about six months of discovery. The case was set down for trial in two months, and we had a pre-trial conference with the Judge. Our client wanted an extension of time for more discovery, but I was sure the Judge would say, no, you've had enough, the case is going to trial. The lawyers sat around the table about to discuss the extension, when the Judge says, "So you're starting the case? That means you'll want six months for discovery, right?"

Anyone have similar experiences?

Any suggestions how to weed out the senile without compromising judicial independece? The only way I see is to impose mandatory retirement at an arbitrary age (e.g. 75).
2.2.2007 1:16pm
JRL:
Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."

Kennedy has already made it quite clear that he has no soul.
2.2.2007 1:19pm
VFBVFB (mail):
Bored Lawyer:

I am all for a mandatory retirement age. (of course it will take a constitutional amendment and it will never happen.) Any attempt to make individualized evaluations of Judges' mental capacity is bound to be adversarial with endless charges of partisanship.

Of course there are no allegations of senility on the part of Stevens, but there have been such allegations as to Supreme Court Justices in the past.
2.2.2007 1:33pm
Kent Scheidegger (mail) (www):
Rather than a mandatory retirement age, I suggest the Supreme Court Justices serve a single, nonrenewable term of 20 years, followed by a full-salary pension for life. Such a rule would have avoided the problems with Justices Holmes and Douglas hanging on as their physical condition deteriorated.

Looking at the careers of long-tenured Justices, few made their most important contributions late in their tenures, and we wouldn't have lost much if they had retired after 20. The only exception I can think of is Chief Justice Rehnquist. We could make elevation to Chief a separate term.
2.2.2007 1:37pm
elChato (mail):
"But being in a coma is not a "Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.""

This is an interesting point, but as a practical matter they would have to think about impeachment, or perhaps some statutory scheme that provides for automatic retirement for judges who become irrevocably incapacitated and are thus unable to comprehend their surroundings. Wasn't the first impeachment of a federal judge because the guy was a drunk who lost it? Posner's book about the Clinton impeachment debacle posed an example of a president who decided to move to Saudi Arabia so he could have two wives, and do his job by phone and email; that is no crime at all but such a president would have to be impeached.

As for mandatory retirement ages: I am all for that. Judge Manuel Real is an unfortunate example in support of them . . .
2.2.2007 2:09pm
AF:
There is a very on-point precedent for dealing with an old and incompetent Justice:


The most recent and best known case is that of Justice William O. Douglas, the longest-serving justice in the Court's history, who had a severe stroke in 1974 at the age of 75. Despite difficulty speaking, constant pain, and frequent confusion and loss of concentration, Douglas refused to consider retiring because he was unwilling to allow a Republican, President Gerald Ford, to name his successor. His condition deteriorated until, in October 1975, seven of the other eight justices (including Rehnquist, the youngest) privately agreed to strip Douglas of all power to influence decisions by holding over until the next term any case in which he would have cast a deciding vote.4 The dissenter, Justice Byron R. White, wrote a letter to Chief Justice Warren Burger protesting that his colleagues' action was unconstitutional. "If it is an impeachable offense for an incompetent Justice to purport to sit as a judge, is it not the task of Congress, rather than this Court, to undertake proceedings to determine the issue of competence?" White asked.5 A few weeks later, Douglas formally retired, but he soon returned to his office, demanding to be allowed to continue to participate in some of the Court's deliberations. His colleagues quite properly refused.
2.2.2007 2:15pm
Bored Lawyer:
Article III actually says that Judges "shall hold their Offices during good Behviour . . ."

Presumably, a judge might act without "good behaviour" without commiting a crime. For example, a judge decides he will hear one case a year (say a one day bench trial), and otherwise he will adjourn to the golf course for the other 364 days. That seems to me a basis for terminating his tenure.

Same thing should apply to a comatose judge -- his failure to fulfill his job is a lack of "good behavior" in his "Office."

Only problem is, other than impeachment, there seems to be no mechanism for such removal.
2.2.2007 2:17pm
Speaking The Obvious:
Admittedly, even a comatose Justice could be credibly claimed to show more understanding of the Constitution than our sitting President...
2.2.2007 2:31pm
Kovarsky (mail):
How about a mandatory retirement age when the justice in question is not politically aligned with you? I mean, that's what you mean by "except for Justice Rehnquist," right Kent?
2.2.2007 2:34pm
Kent Scheidegger (mail) (www):
Nope, I meant what I said. Chief Justice Rehnquist made important contributions to the Court during his tenure as Chief Justice which were different from what he accomplished during his time as an associate justice.

Note that I did not endorse mandatory retirement ages at all. I suggested a single 20-year term. Further, I did not suggest an exception by ideology but rather that elevation to chief justice be considered separately.

High opinions of William Rehnquist as Chief Justice are not limited to conservatives. Thurgood Marshall thought he was a great Chief Justice, according to Juan Williams.
2.2.2007 2:57pm
Anderson (mail) (www):
Rather than a mandatory retirement age, I suggest the Supreme Court Justices serve a single, nonrenewable term of 20 years, followed by a full-salary pension for life.

Presumably the terms would also be staggered, so that barring untimely demise, there would be a consistent number of appointments per presidency.

I used not to like that idea, but it has some appeal.
2.2.2007 2:58pm
Jason Fliegel (mail):
John Pickering of the District Court of New Hampshire was impeached in 1803 because he was insane. Officially, the charges were drunkenness and unlwful rulings. Pickering's supporters argued that he had committed neither high crimes nor misdemeanors, and that there were therefore no grounds for impeachment. Part of what was going on was that Pickering was a Federalist judge and by 1803, the Democratic-Republicans had taken control of the federal apparatus and wanted to remove their political rivals from power. But part of what was going on was that Pickering was just plain looney and the Constitution did not explicitly provide any sort of remedy.

The Senate wound up convicting Pickering and removing him from office (I believe on a party-line vote, but I'm not certain).

In 1804, Supreme Court Justice Samuel Chase was impeached for "political bias," but the Senate acquitted him.

A lot of this is detailed in Bruce Ackerman's excellent 2005 book "The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy" (among other places, I'm sure).
2.2.2007 3:11pm
Kovarsky (mail):
Kent,

Actually, you said this:

Looking at the careers of long-tenured Justices, few made their most important contributions late in their tenures, and we wouldn't have lost much if they had retired after 20. The only exception I can think of is Chief Justice Rehnquist.

Which, strangely, looks different from what you said you said:

Chief Justice Rehnquist made important contributions to the Court during his tenure as Chief Justice which were different from what he accomplished during his time as an associate justice.
2.2.2007 3:11pm
Jason Fliegel (mail):
Getting rid of justices after 20 years would have lost us Hugo Black after 1957, William Douglas after 1959, William Brennan after 1976, and Antonin Scalia after last year, to name just a few.
2.2.2007 3:17pm
Kovarsky (mail):
I wonder if a constitutional amendment to limit terms would violate the contract clause? I know absolutely nothing about the contract clause, other than Lochner stuff, but I assume the government could provide an interest (compelling?) sufficient enough to overcome its abrogation of the employment contracts of sitting justices.
2.2.2007 3:25pm
VFBVFB (mail):
Kovarsky:

The Contract Clause states, "No State shall ... pass any ... Law impairing the Obligation of Contracts." It does not limit the rights of the federal government. And if it does, what's the problem? A constitutional amendment can "violate" a constitutional provision, that's exactly what the amendment process is for.
2.2.2007 3:30pm
Kent Scheidegger (mail) (www):
Rehnquist was an associate justice for 14 years and chief for 19. The two statements are consistent.

William Brennan's departure in 1976 would indeed have been a good thing. The others had made their most important contributions prior to the dates mentioned. If President Eisenhower had a couple more appointments, Henry Friendly might have made it, which would have been a very good thing.

How could a constitutional amendment possibly "violate" an existing constitutional provision? The whole purpose of amendments is to change existing provisions.
2.2.2007 3:34pm
Kovarsky (mail):
VFBVFB,

Yes I agree. Brain fart on my part.
2.2.2007 4:02pm
Kovarsky (mail):
Kent

How could a constitutional amendment possibly "violate" an existing constitutional provision? The whole purpose of amendments is to change existing provisions.

As I said to VFBVB, "violate" was an extraordinarily poor verb choice on my part.
2.2.2007 4:07pm
Kovarsky (mail):
Actually, more to the point, I had it in my head, for some reason that I was talking about a state constitutional limit, and whether it would violate the federal constitution. So in that sense it could "violate" the contracts clause. Of course that's not at all what we're talking about....
2.2.2007 4:15pm
David Maquera (mail) (www):
Too bad, I really wanted to see the President nominate Harriet Miers to the SCOTUS again.
2.2.2007 4:46pm
DaveN (mail):
A 20 year term is an interesting idea--and Kent Scheidegger has a good point that most justices are at their most creative long before the 20 year mark.

If such an amendment went through, though, would we want to extend it to the Circuit Courts as well? And if we did, would we lose the expertise of someone like Alex Kozinski, who was appointed to the 9th Circuit 22 years ago at age 35?
2.2.2007 7:39pm
SP:
Is it Stevens fighting for Kennedy's soul? Or is it his clerks, since he is too busy wetting himself?
2.2.2007 10:20pm
Lev:

Rather than a mandatory retirement age, I suggest the Supreme Court Justices serve a single, nonrenewable term of 20 years, followed by a full-salary pension for life.


I suggest 18 years - each position is numbered and has a full term of 18 years. Every two years, one position is "up" and the justice retires. A very regular succession, every president nominates some justices, no..."rush hours"...no "hanging around until the right party controls things."

If a justice dies in office, the nomination is for the rest of his term.

See e.g., how the Senate was started out.

At the beginning, after the mythical amendment is passed in our fantasy, the positions are numbered 1 to 9 based on some objective criteria - number of of years on the court at passage, age at passage, lots. The terms would expire on July 31 of the odd or even years, determined by the first July 31 after ratification The term for position 1 would be "up" on that first odd or even year. If ratified in 2135, all terms would end on July 31 of even years, and position 1 would have a new justice August 1, 2136.
2.3.2007 12:29am
Jonesy:
Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy.

LOL Go John Paul, go. Im not sure Kennedy even needs it though, he seems pretty liberal to me.

This doesnt surprise me. Stevens knows how much of an impact him leaving the court would have on its ideological makeup. He knows how much conservatives want to see him retire too. I wont repeat the vile remark Ann Coulter made.

Same goes for Ginsburg. Theyd have to carry her off on a strectcher for Bush to get the chance to fill her seat.

Im glad to hear that Stevens has Kennedy's ear. Thats good news. I hope he's talking to Alito too.
2.3.2007 1:04am