Sunday, August 21, 2011

NON PARTISAN SUPREME COURT

 As the American people begin to gear up for another Presidential election, the issue of controlling the Supreme Court once again lands on the front burner.

And why does it matter?

It matters because the Supreme Court of the United States has become just another political branch of government. Just another center of power where people go to get what they can’t get from the Congress, or from their state legislatures.

It used to be that folks argued about activist judges versus strict constructionists.

Conservative Justices were just supposed to interpret the laws and the Constitution. Stay out of the voting booth. Stay off the editorial pages. Leave the hot button issues to the representatives elected by the people.

Bush versus Gore put an end to that. If you’ve got a majority of the Court, you’re the seven hundred pound gorilla. You can do whatever you want to do.

Then again, maybe, just maybe, the stars are well aligned to talk about how to get back to basics. Lots of folks are ticked off with both parties. Tea and coffee parties have emerged because the folks don’t even want to be called Republicans and Democrats.

Independents are on the march. Here’s something they ought to be marching for: a non partisan Supreme Court.

Is that possible? Isn’t everyone something? Right, Left or whatever. But not just nothing.

Well, of course, nobody’s just nothing. Every judge has principles and preferences, experiences and opinions. It’s human nature.

But almost all of the 50 states have found a way to insulate their judiciary from the nitty gritty of partisan politics. Non partisan elections, Missouri Plan nomination, appointment advisory boards. There are lots of ways to soften the hard edges of party loyalty.

So here’s my thought for the day:

THE NON-PARTISAN COURT AMENDMENT
The Supreme Court shall consist of the current nine justices and their successors who shall be appointed for eighteen year terms by the President, without confirmation, from among a panel of five candidates nominated by the Chief Justices of the highest courts of the several states.

The Court shall interpret the Constitution and its amendments as understood by the people who ratified them and shall render no opinion enlarging or diminishing the powers of the government or the rights of the people.


I submit that this amendment would put an end to talk of court packing, to Presidents appointing justices to promote political agendas, to Senatorial confirmation circuses, and to tottering, dottering old men and women sitting on their Supreme Court seats, waiting for their party to win the White House.

If you’re with me on this, let me hear from you.

18 comments:

LaZetta III said...

I am not a lawyer, or a constitutional scholar, so I will not pretend to know the best way to reform the nominating process. However, I do firmly believe it needs to be reformed.

I am strongly in favor of term limits in all branches of government. Is 18 years appropriate? Why is it appropriate?

How does the second paragraph differ from what it written in the 9th amendment? Isn't that suppose to be the role of the court as it's written now?

I would also like to see some form of enforcement mechanism to reign in courts that are obviously legislating from the bench. There seems to be no practical way to check the powers of the Court once it rules (i.e. Citizens United)

Thank you for your efforts.

Judge Brennan said...

The ninth amendment addressed the proposition known in the law as "Expresio unius est exclsio alterious" which generally means that when you have a list of things whatever is left off the list is left off on purpose. So a constitutional provision which says that every male of a certain age shall have the right to vote does not prohibit younger males or females from being given the right to vote as well.

Admittedly the proposed non partisan amendment confirms what many constitutional scholars have always maintained: that the court interprets the law and does legislate. Still, spelling it out in the constitution may keep the court from creating new rights (like gay marriage) or rendering opinions that amount to enacting new state laws.

Al Cannistraro said...

"The Court shall interpret the Constitution and its amendments as understood by the people who ratified them and shall render no opinion enlarging or diminishing the powers of the government or the rights of the people."

Two questions: 1, Why should the above limitation be implemented? 2, How could the above limitation or any other similar limitation be enforced?

Fedup1953 said...

I agree with this amendment. We no longer have justices serving the Constitution. These people are serving their own best interests (i.e., Clarence Thomas and his refusal to obey the disclosure laws). This court has proven they can be bought (i.e., Citizens United). LaZetta III has a good idea with an enforcement mechanism built in. Another question, though, would this apply to appointed Federal judges or just the Supremes?

Thank

Fedup1953 said...

I agree with this amendment. We no longer have justices serving the Constitution. These people are serving their own best interests (i.e., Clarence Thomas and his refusal to obey the disclosure laws). This court has proven they can be bought (i.e., Citizens United). LaZetta III has a good idea with an enforcement mechanism built in. Another question, though, would this apply to appointed Federal judges or just the Supremes?

Thank

Edward Richardson said...

I do not know about term limits on the Supreme Court...I'll have to think on that one.

As far as limiting legislating from the bench...if a decision of the court would have the effect of creating new law or new rights, the case should be immediately turned over to the senate for consideration. The senate would be restricted to considering the specific point that would create a new law or right and no "riders" would be allowed. In order for the new law or right to take effect, it would have to pass a super-majority (2/3rds + 1) vote in the senate then go to the house for an immediate vote also requiring a super-majority (2/3rds + 1). once passed, instead of requiring the presidents signature, it would require ratification just as a new amendment to the constitution.

If the point cannot agreed to, then the case MUST be decided AGAINST creating the new law or right.

Roger said...

I believe the condition of our country today fall directly at the feet of our country's judicial system. We have someone occupying the White House who is so obviously illegal according to the constitution,and I don't mean where he was born. The supreme court's definition of a Naturally born citizen is someone with both parents being citizens of this country. Obama's father was never a citizen of this country. He was illegal to run the first time and is still illegal to run now. If our courts had been doing their job, he wouldn't be occupying the White House now.

Jon Roland said...

The way to solve this problem is to appoint judges not to a specific court, but to a large common pool from which all seats are filled for limited terms by drawing from the pool at random, having many more judges on each court than necessary, and assigning them to cases at random. When not hearing a case, they would be assigned other duties, such as administration, clerking, research, writing, and teaching. The proposal is at http://amend-it.org and http://jonroland.net/proposed_bills

Yankee Patriot said...

I second the "NON PARTISAN SUPREME COURT" be put as a motion to vote on as a proposed amendment.

Unknown said...

The idea of non-partisan judges is simply impossible. The President will always know who he is nominating, so in this case would the State Supreme Court Justices.

It is far more important to limit the powers of the office than to hope in the honesty of men.

That is why the founders created a limited government.

As Madison wrote, " If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

And Jefferson, "But let no more be said of trust in men, instead bind
them down with the chains of the constitution." Paraphrased)

Roy Ellis said...

Seems a difficult task to constrain the courts in their interpretation of justice.

Why not give them their rein and if the people object let them use Article V Convention to overturn a SC ruling.

I would think our focus on Article V is most important. AVC gives the citizen a way to weigh in on an/all legislation or court rulings.

Thomas E. Brennan said...

The Roberts ruling on Health Care shines a spotlight on the problem of partisanship on the Supreme Court. I think he decided as he did primarily so that the Court would not be accused of partisanship.

Frankfort Township Thirteenth Precinct Republicans said...

Here is my proposed amendment:

The Supreme Court shall consist of the current nine justices. The three longest serving justices, serving at least 12 years will have their terms end 6 years following ratification of this amendment. The next three longest serving justices, serving at least 6 years, will have their terms end 12 years following ratification of this amendment. The remaining three justices terms will end 18 years following ratification of this amendment.

Successors shall be elected for eighteen-year terms by vote of the people. The people of each state shall elect one representative to be considered by the President for placement on a national ballot. The President shall select the top five candidates by ranking the whole body of candidates from each of the states by measure of their: honesty; integrity; service to community, state and nation; wisdom; and demonstrated understanding of the constitution.

The Senate, by majority vote, shall confirm the President's selected slate of candidates. The five candidates shall face election by vote of the People, with the three getting the most votes elected for an eighteen-year term.

For vacancies resulting from death, inability to perform official duties or retirement, the President will appoint a replacement justice to serve the remainder of the former's term if that period is less than two years in length. Otherwise, a special election shall be held equal to a regular appointment to elect a new justice to serve out the former's term.

The Court shall interpret the Constitution and its amendments as understood by the people who ratified them. The Court shall render no opinion enlarging or diminishing the powers of the government or the rights of the people not already contained in the Constitution or common laws of the government or the states.

Justices may be removed from office when two thirds of the states through majority vote of the citizens from each of the states affirm the removal petition.

Some justification for my proposed changes:

- The way the currently proposed amendment reads, the selection of justices is moved from one political body to another (i.e, from the President and the Senate to the chief justices of individual states). There will be no way for any non-lawyers or non-politically favored individuals to get vetted or confirmed. My proposal puts it in the hands of the people to elect the best person from their state followed by a Presidential vetting process and again followed by a vote of the people.

- My proposal also makes it easier to get rid of bad judges. If the Justices tick off enough people with bad rulings, those same people can get them removed by vote of the people and not by the more indirect route of going through elected representatives. The people care little about what the press or the opposing parties newspapers think of them, especially when they are in the voting booth.

heavymetalducks said...

I agree with Yankee..I like this motion.

Joshua Arrowood - TN Delegate said...

Being a republic and not a democracy, a problem with making the SCOTUS elected is that a majority can control all 3 branches of government, making us a democracy by default by which a minority's power much more limited.

A mechanism for removal of justices for violating the Constitution, the whole Constitution, and nothing but the Constitution might be better.

We can't use religious law, foreign law, or law which says do it because it seems right.

Anonymous said...

I like the whole amendment except for the Presidents part. Why should the President be involved at all? Let the Congress pick them by a majority vote. . .thus giving the power to Congress instead of the President!

Leonard Young (Missouri) said...

I loke the opening paragraph that changes the method of appointment of Supremem Court Justices. This seems like an eminantly fair and broad-based approach.

I'm not sure that the second paragraph passes the enforcibility test. Much of this is in the "eye of the beholder". I doubt whether the provisions in the secon paragraph would meet the desired end and I'm not sure that just because the Founders thought something meant something in 1787 is a reason to make it the final word for time and eternity.

I'd suggest you go with the first paragraph which is enforceable and clear and not muddy the water with trying to adopt a particular constitional insterpreteation theory.

As you would certainly know, there has been much excellent progress in American as a result of Brown v the Board of Educaiton in 1954 which was opposed at the time as a judicial overreach.

Len Young (Missouri)

Judge Brennan said...

Leonard's point is well taken in that the second paragraph is not automatically enforced, and depends on the faithfulness of the Justices to their oaths of office.

Additionally, it is subject to interpretation,i.e. the court might create new rights or powers, but opine that they are merely interpreting existing rights and powers.

Politically, it might be necessary to eliminate the second paragraph in order to win support on the left.

That said,I don't think any state would attempt to reinstitute racially divided schools, although i do think there is much to be said for sexually divided schools. That should be a matter of legislative policy and not constitutional law.