We are about to turn the calendar page to June. June is the month the U.S. Supreme Court hands down the bulk of the decisions and rulings it makes each year on the cases it has heard since the first Monday in October, the traditional opening day of the court’s calendar. It is also the time of year when by tradition justices who plan to retire make that announcement.
One of the foremost cases before the court this year is one that stalemated when the court effectively was knotted in a 4-to-4 tie after the death of Antonin Scalia. That case has to do with the ability and right of unions to collect dues from non-members who benefit from the contracts that unions negotiate and achieve for their members. It is aimed squarely at public sector unions.
A challenge inspired by and brought by interests related to the Koch brothers, and substantially funded by them, seeks to remove that right. Had it succeeded two years ago unions would have suffered substantial financial losses that would affect their continuing ability to organize new bargaining units, build membership, provide the strongest representation they still can for workers/members and be an effective political voice and force.
Now with the appointment to the court of Neil Gorsuch, a man at the extreme right of American political and legal thinking, an arch throwback to the United States before 1850, the unions are likely to lose the case, which was heard again this year.
He joins the two other truly reprehensible men on the court: Samuel Alito, a man whose religious bias and belief permeate every decision he makes; and Uncle Clarence Thomas — a childless man seemingly at war with himself for having been born black, who acts out this seeming self-hatred by silently wrecking the legal rights of your children and your grandchildren. Add these three to the assumption that Chief Justice Roberts and Justice Anthony Kennedy will vote as they did in the union case the first time and it is virtually certain the decision this time will be 5-to-4 against labor.
Thus, as to the union case, don’t hold your breath. It needs but Gorsuch to join those four and the unions will have lost. Nothing is certain in this world until it happens but that ruling would appear to be about as certain as certain is in matters concerning the Supreme Court of the United States, unless the Chief Justice or Justice Kennedy find some angel dancing on the head of a legal pin to reverse one of their votes.
More important right now than this or any single case and decision before the court is whether Justice Kennedy, who will be 82 years of age on July 23, will retire or continue on the court. Traditionally, Supreme Court retirements are announced on or very near to the last day of the court’s term, June 30 each year.
Those of us on the left, but not just us, those too in the center politically, and, yes, those at the center right, figures like Nicole Wallace and Steve Schmidt (who we have grown familiar seeing and hearing exhorting “the better angels of our nature”), can only hope Justice Kennedy will remain on the court.
We can only hope that he sees a larger purpose in his years of service now, which is to preserve a court that can weigh what have become in fact, no matter what lawyers say — have become political decisions of a legislative quality in the guise of legal rulings, making the justices less a Supreme Court and much more a supreme legislative body.
If he stays, if Democrats take the U.S. Senate somehow in the political turmoil brewing across the nation, then if by death or retirement a justice leaves the court after next January 4, Democrats can employ the cynical and arrogant rule established by Sen. Mitch McConnell.
The McConnell rule stole a Supreme Court seat. It established a wholly unprecedented, unconstitutional, conscienceless, near criminal extinguishment of a president’s constitutional duty to nominate a Supreme Court justice — and the Senate’s constitutional duty to take a very, very, very timely vote on whether to confirm the nominee — in the final year of that president’s term.
Is that a good thing for the Republic? No, of course not. Would it be a case of you started it we’re going to continue it if Democrats win the Senate and extend it to the final two years of the incumbent president’s term? Absolutely. Should they if they get the chance. You’re damned right they should. If Republicans can be deplorable, why are they owed better in return? Et Tu McConnell?
The fact is Merrick Garland should be on the court now, not Gorsuch. It is an injustice that he is there at all, much less that he is there because the Koch brothers’ creature, The Federalist Society, put him there as one of the many seeds of extreme right-wing belief jurisprudence it has planted in the American judiciary during the first 17 months of the Trump presidency.
Americans generally simply do not understand that it is a terrible, terrible, terrible mistake to vote for a person. Our federal system, which rises from and gives back model to our states’ political and governmental systems, admits only two parties. By the constitutional nature of our Republic, which as to presidential elections is not a democracy, it cannot make room for a three-party system much less a greater number of parties.
So no matter who the candidate is, in every election our vote is and should be not for a person, but for a party. Too few understand this. You want change and progress in this country? Then don’t waste your vote on a so-called moderate Republican who will turn around and vote to put the likes of Ryan and McConnell in charge. Vote for the Democratic Party no matter who its candidate is because it is the only instrument for progress, change and enlightened government we got.
As in the present foolish intra-part fights in the Democratic Party. Don’t vote for who you agree with, vote for the candidate with the best chance to win and in turn to vote to form a majority to take back the House or the Senate, or both.
A vote for Donald Trump is not and was not a vote for him, for the one man, no matter how vile he is — and he is. It is and was a vote for Scott Pruitt, for Betsy Devos, for John Kelly, Jared Kushner, for the self-hater Stephen Miller, for Gorsuch — all the rest of this wrecking crew.
We do not vote in elections for the House and Senate for a man or a woman. We vote for who that man or woman will vote to make Speaker of the House of Representatives or Majority Leader of the Senate.
We vote for which party will control the chamber and through control and the leaders the majority chooses, control committees, committee assignments, bill drafting, the flow or not of legislation through committees (or in the present Congress essentially by by-passing the committees); the scope and use of congressional investigative power (and we’ve seen the result of that lately and perfidiously as at no time since the time of Joseph R. McCarthy); and it awards control through all the above of the agenda, of the drafting of and finally voting on bills.
Who cares who they are as long as they can win and vote for Democrats to organize and control the one house or the other or both. Making those kinds of infernal, internal candidate distrinctions within parties is self-defeating political stupidity of the first water. Democrats, doing it every day now, need to wise up to this or get used to losing and losing and losing, including losing the courts.
Ah, but back to the courts and the one court in particular because in the case of the Senate, there is the added and not inconsiderable, over-arching responsibility to advise and consent concerning presidential appointments, including notably those to the federal courts; most notably of all, to the U.S. Supreme Court (SCOTUS in the lexicon of government and journalese).
And so the court has become the ultimate battleground as it has been periodically through our history but now more than ever. It is a trend that admittedly started with the rejection by Democrats of the nomination of Robert Bork and continued with the controversy surrounding the confirmation of Clarence Thomas.
It must and can be said as an aside here that we know in the present moment, in the time of the @MeToo movement, Thomas would never have been confirmed. We know now to a virtual certainty that Anita Hill told the truth, that Clarence Thomas lied. He knows we know it, this creature whose very silence on the bench is as if to give America the finger. (On the other hand, Justice Sotomayor talks far too much both on and off the bench).
So the month of June reminds us each year that the high court has become the ultimate battleground; the hardest, deepest and most treacherous, unyielding terrain upon which our present political, governmental and philosophical civil war is being fought.
Is this good for the nation? Decidedly not, no matter on which side of the political line your political beliefs reside.
Is there a solution? Yes. Would it take an amendment to the Constitution, almost impossible to achieve these days because of that civil war? No, it would not.
The Constitution in Article III, the judicial article, establishes the federal judiciary “…in one Supreme Court, and from time to time in such inferior courts as the Congress may from time to time ordain and establish…”
In the 231 years since the Constitution was written and ratified the Congress has established the federal district courts and the federal appellate courts subordinate to the Supreme Court. The Constitution grants to congress the power to decide how many courts and judges there will be. This became our system of judicial circuits. It let’s congress increase the number of judges as needed, or not, or decrease them if it finds reason.
Most importantly it leaves to Congress the determination how many Supreme Court justices there will be/are and the terms of their service, including the duration of their terms.
That’s why in 1937 flush from his 1936 landslide victory, President Franklin Roosevelt proposed expanding the number of seats on the High Court from 9 to as many as 15 — in the jargon of the debate over that proposal — to “pack” the court to overcome the very conservative majority that was overturning his New Deal law by law. He got his ears pinned back by Congress. SCOTUS membership remained and remains at 9.
Then what is the term of service a justice serves? There is none. Congress has put no limits on the length of time a Supreme Court justice may serve or an age limitation on such service. As a consequence we have justices who serve 30 years, 40 years, even more than 40 years on occasion. We have justices who served, as John Paul Stevens and William O. Douglass and others have, to past 90 years of age.
What is the best, simplest, most common sense means to reduce the tension over who controls the high court, to assure that there is a sensible turn-over of the court’s membership reducing the ferocity of the battles over selection and confirmation of justices?
What would be the most sensible change to assure that there is turnover on the court that keeps pace with changing social attitudes, changing economic forces, with the advances of science and technology and, above all with the ever-changing, emerging new generations and new populations that comprise the American people?
It is one simple change that can be accomplished not by changing the Constitution but merely by enacting a law to establish a mandatory federal judicial retirement age.
Is there a worthy example? Yes, take a look at New Jersey, credited always with having one of the finest, most exemplary state judicial systems in the nation.
Wisely, the New Jersey Constitution adopted in 1947 provides just such a retirement mechanism. New Jersey state judges are appointed by our governors subject to the Advice and Consent of the New Jersey Senate. They are appointed first for a seven-year term. At the end of that term they may be, and almost always are, nominated for a second term. If confirmed, and virtually all are, New Jersey state judges then receive a lifetime second term but with one limitation.
The limitation is this. They receive life tenure on renomination and re-confirmation with one very important distinction. Whether they are reappointed at age 49 or 59 or 69, no matter their age on second and final appointment, they must retire at age 70. That is in the New Jersey Constitution. They can ask to or be asked to serve again by the Chief Justice from time to time as trial level judges and some do. But even a retired State Supreme Court justice who is asked or asks to perform some post-retirement judicial service will do so as a trial judge.
That seven-year first term restriction and the provision for reappointment for life tenure with mandatory retirement at age 70 applies equally to the seven members of the New Jersey Supreme Court as to all other State of New Jersey judges.
Are there political battles over New Jersey’s court appointments and sometimes intense focus on nominations and confirmations to the state’s highest court? Yes, of course there are, all things political and governmental that matter greatly can be and almost always are contentious.
But is there, because of the judicial retirement requirement, a general consensus about and within our state’s judiciary? Is it one that reflects the balance of a certain fixed and sensible turnover of judges and of membership on the State Supreme Court? Absolutely.
Would a federal judicial retirement age, applicable to all federal judges including the nine SCOTUS justices have a similar moderating and modifying impact and effect on the government on the United States, on our Republic, on our politics and, above all, on the lives of 330 million U.S. citizens?
You can bet it would and if you took that bet you would win it.
In the short-term, perhaps the span of just one presidential term, it would change the outlook of that president’s judicial appointive power — though it could be phased, for example by setting an age-80 limitation for all serving as federal judges when such law took effect and then setting an age limit of say 70 or 72 for all subsequent judicial nominees/future federal judges (including especially SCOTUS justices).
Thereafter the churn of retirement would express and reflect the shifts that occur in our political life as a nation and build into the judiciary a modest balance that it certainly lacks today.
Ruth Bader Ginsburg, Stephen Breyer, Clarence Thomas, Anthony Kennedy would all by now be long retired. Some replaced by President George W. Bush, some by President Barack Obama, some perhaps to be replaced by nominees of Donald Trump, who in turn much sooner would be succeeded by nominees of the next president and the next after her as any and all justices reached the required retirement age.
It is something both parties should agree to do and should be able to agree on to stop the endless, bloody, divisive battles over the courts but especially the SCOTUS, which in turn feeds the stream of political hatred and vitriol that infects the American body politic today to the point of disabling it.
We need Congress to pass a law requiring all federal judges, including the nine justices, to retire at age 70 or 72 at the latest. In a complex and complicated world, this is an easy one if only they would do it. But yes, you’re right, they won’t on either side because neither will give up the least perceived political advantage.
So let us wish Justice Kennedy a long life — and may it continue and prosper on the high court.
Peeling the Onion 