While I was brought up to believe that it is OK to bring forth constructive criticism and to point out the error of one’s ways, I was also taught that it is much better to do so with a solution in hand. Those who practice, teach, and dispense the law have both complained and criticized the U.S. Supreme Court, in particular, regarding the subject of tenure. Most have argued the point with good reasoning and with overwhelming evidence. Few have come with a viable solution in hand. A very good exception to that lack of any solution comes from a group of more than forty (40) prominent legal scholars. Among those leading the charge are Paul Carrington and Roger Crampton. They are not only professors and former deans of highly respected universities, but they put the icing on the cake of bipartisanship – one is a Democrat, and the other a Republican.
*Among the many complaints of most scholars is the thought that with lifetime tenure come both physical and mental health problems. With justices serving well into their late eighties (80’s) and beyond, are we being properly served by those who claim to still have the mental capacity to discern the intricacies of law?
*Lifetime tenure itself is a testament to the inequality of the court system. If justices, chosen by presidents, may “hold their offices during good behavior” (or ‘til death do we depart), some presidents have no opportunity to appoint justices to the court. Appointments are only made when there is a vacancy. Presidents, particularly Republicans, tend to nominate potential appointees by virtue of their age, or lack thereof. With a justice starting out young and serving till it is no longer feasible (and even longer), the makeup of the court becomes extremely one-sided.
*Another problem brought on by lifetime tenure is the time in which it takes for the confirmation of a candidate. This goes hand in hand with the lopsidedness of the current system. If presidents make it their business to choose very young candidates who will have lifetime tenure, the opposition may tend to draw out the nomination process in an attempt to prevent the prevailing president from “stacking the odds”. One candidate after the other can be tossed aside, delaying the process of confirmation, possibly for years.
It has been argued that a person’s age should not be considered as a factor of employment or continued employment, in this case – laws have been passed prohibiting discrimination on the basis of age, basic civil rights laws. One argument that I disagree with is the idea that Oliver Wendell Holmes, who served for twenty-eight (28) years up to the age of ninety, was still in full mental capacity during the length of his tenure. There are tales of witty remarks that are said to have come from his lips, supposedly giving credibility to the retained sanity and mindfulness of an aged human being. I say that wit and memories of years past do not validate the idea that a person in his or her later years is still capable of discerning law and its intricacies.
The proposal, entitled “The Supreme Court Renewal Act”, brought forth by this “group of forty”, is to limit the number of years that each justice will serve to eighteen (18) years, and to appoint a new justice every two years. The plan is both complicated and hard to fathom. It is hard to fathom as there are many proponents of continued lifetime tenure. Who do you think would be the ones most in favor of maintaining the status quo? The justices themselves. Is it unreasonable to expect them to not want to usurp their own power? It will be a tough war to win, but, the “group of forty”, including Paul Carrington and Roger Crampton are prepared to do battle.
Paul Carrington and Roger Crampton have co-authored a book entitled “Reforming the Court”. For more details of the proposal and reasons that is should be instituted, please see Life Tenure Is Too Long . . .
This is blackstarr saying “Vive La Renaissance!”
copyright © 2008 blackstarr
Renaissance, New Millennium, Supreme Court Justices, lifetime tenure, Carrington and Crampton
