Conservative Justices

The Argument For 18 Year Terms For Supreme Court Justices In The Future To Insure Constitutional Stability

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The controversy over Supreme Court nominee Brett Kavanaugh is a time to consider modifying the Judiciary Act of 1789, and end lifetime terms, and change to a maximum of 18 years on the Court for any future Supreme Court Justice.

It would insure in the future that we would have two Supreme Court appointments in any Presidential term, with the limit insuring turnover, rather than locking in a one sided Supreme Court, which can distort constitutional law and interpretation in a detrimental fashion.

Right now, in 2018, we have the danger of locking in a five member right wing Court that could last for 20-30 years, and the Court should, ideally, be a balanced Court, with some liberals, some moderates, and some conservatives, which normally was the way it was most of our history, but now seems a distant dream.

While there is an argument for longer terms, based on specific Justices being considered significant and admired by many, it still makes sense that we have a maximum of 18 years on the Court, and that way, the likelihood of having Justices at advanced ages, in the late 70s and early 80s, is much less likely to occur.

And one must realize that since most Justices come in modern times from the Circuit Courts, it means the average Justice would have a long judicial career, and if coming from an executive or legislative branch background, rare but has occurred in the past, that a Justice’s total career in public service will have been a long one.

Many Presidents Have Made Court Appointments In Last Year Of Term Or Presidency

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The Republican Party is making the preposterous argument that a President, in his last year in office, should not be able to make an appointment to the Supreme Court, when history tells us otherwise.

Just because a President is finishing his time in office does not mean that he has no authority to do his job, which includes appointing judges and Justices!

And what about Presidents running for reelection, with the possibility that he might not be reelected?  Does that mean every President in the last year of any Presidential term should lose his powers to make appointments to the federal judiciary?

History tells us otherwise as witness the following:

George Washington 1796 –two appointments

Thomas Jefferson 1804–one appointment

Andrew Jackson 1836–two appointments, including Chief Justice Roger Taney, who remained on the Court for 28 years

Grover Cleveland 1888–two appointments, including Chief Justice Melville Fuller, who remained on the Court for 22 years

Benjamin Harrison 1892–one appointment

William Howard Taft 1912–one appointment

Woodrow Wilson 1916—two appointments, including the controversial, longest battle, to put Louis Brandeis on the Supreme Court

Herbert Hoover 1932–one appointment (Benjamin Cardozo)

Franklin D. Roosevelt 1940–one appointment  (Frank Murphy)

Ronald Reagan 1988–one appointment (Anthony Kennedy)

Additionally, Presidents have made appointments to the federal district and circuit courts when in the last year in office (Reagan 26 and 7; Clinton 37 and 9; Bush II 26 and 6; Obama 4 and 4).

And from 1947 to 2014, 416 District Court and 79 Circuit Court appointments have been made in Presidential election years.

So the Republican Party has no case for why Barack Obama should not be able to make an appointment, other than that they do not want a liberal replacing a conservative, and bringing the end of the 44 year conservative and Republican dominance on the Court.

But the answer to that is to stop being a crybaby and accept that your reign of dominance is coming to an end, and not too soon.

It is time to move into the 21st century of constitutional law, rather than dwell in the 19th century Gilded Age mentality of the conservatives on the Supreme Court!

 

 

Supreme Court Expands Gay Marriage Rights To Five States, And Probably Six More, By Decision Not To Challenge Circuit Court Decisions!

Ronald 1 Comment

The nation is moving much closer to the eventual reality of gay marriage being accepted by the Supreme Court, probably in 2016.

It is clear there are NOT five votes to stop it from happening, as Anthony Kennedy very clearly has joined the four “liberal” Justices on that issue, based on his vote in Lawrence V. Texas in 2003.

Therefore, the conservatives on the Court have decided to, at the least, delay a final decision by allowing what has been approved by different circuit courts to stand as legal.

So now, Oklahoma, Virginia, Wisconsin, Utah, and Indiana must allow gay marriage as a result, raising the number of states to 24, but with six more states likely to added in days, including Wyoming, Colorado, Kansas, West Virginia, North Carolina and South Carolina, making a total of 30 states and 60 percent of the nation!

Additionally, the 9th Circuit Court of Appeals could rule similarly very soon, adding Alaska, Arizona, Montana, Nevada, and Idaho, making it 35 states.

The Religious Right will continue to promote hate and division, but they and right wing conservatives and Republicans will be repudiated for their stand, and in the long run, suffer dramatic decline in support, as they richly deserve to have happen to them, as they have shown the hypocrisy and falsehood of their religious and political philosophies!

The Supreme Court Of 2014 Most Right Wing Since Early 1930s!

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The Supreme Court has been controversial at different times in its history, but the present Court of 2014 is considered the most right wing Court majority since the early 1930s!

Since the Warren Court, which began in the 1950s, we have never had such conservative Justices as we have now.

Three of the present Justices are among the most conservative ever to sit on the Court, including Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito.

If one adds former Chief Justice William Rehnquist and former Associate Justice Lewis Powell, we have the five most conservative Justice since 1953, a period of 60 years.

Not much behind is Chief Justice John Roberts and Associate Justice Anthony Kennedy, both capable of surprises in their votes and rulings, but still most of the time joining Scalia, Thomas, and Alito.

These seven named Justices were all picked by Republican Presidents–two by Richard Nixon; two by Ronald Reagan, plus his promotion of Rehnquist to the Chief Justiceship; one by George H. W. Bush; and two by George W. Bush.

But also, Republican Presidents have selected Justices who turned out to be quite moderate, and even sometimes liberal, including Chief Justice Earl Warren and Associate Justice William Brennan by Dwight D. Eisenhower; Chief Justice Warren Burger and Associate Justice Harry Blackmun by Richard Nixon; John Paul Stevens by Gerald Ford; Sandra Day O’Connor by Ronald Reagan; and David Souter by George H. W. Bush.

Since 1953, Republicans have controlled the White House for 36 years, while Democrats have had control for 25 plus years, and that has caused the right wing tilt of the Court, which could have been even more so, if not for the surprises presented by the seven “less” conservative, and some “quite liberal” Justices listed in the above paragraph!

So the Republicans have chosen 17 of the past 25 Justices since 1953, with John F. Kennedy picking two, but one (Byron White) turning out to be conservative, and Arthur Goldberg leaving the Court after only three years, due to the urging of Lyndon Johnson that he become United Nations Ambassador. Johnson selected Abe Fortas to replace Goldberg, but he stayed on the Court for only four years, and left the Court under the cloud of scandal. The first African American Justice, Thurgood Marshall, would go on to serve as a champion liberal for 24 years from 1967 to 1991.

Jimmy Carter would have no appointments to the Court in his four years in the White House, the only such situation in the 20th century, and one of only four Presidents to have had no appointments, but the only one to have a full term in the Presidency. The other three Presidents were William Henry Harrison (one month); Zachary Taylor (16 months); and Andrew Johnson (almost a complete term, but so unpopular that the Senate would not confirm any Court appointments in his time in office).

Bill Clinton selected Ruth Bader Ginsburg and Stephen Breyer; and Barack Obama has chosen Sonia Sotomayor and Elena Kagan as his appointments, so far, on the Supreme Court. So note that out of the eight appointments by Democrats in the Presidency, three have been women; five have been Jewish; one has been African American; and one has been Puerto Rican, with only Byron White being a typical white Anglo Saxon Protestant.

The question has now arisen whether Ginsberg, and maybe even Breyer, should retire, and guarantee that Obama could replace them, with the concern that the Senate might go Republican in November, making any Court appointment nearly impossible due to gridlock and stalemate. There is also fear that were the Republicans to win the White House in 2016, which is highly unlikely, that then the Court would be ever more right wing reactionary than it already is.

It is a calculated gamble for Ginsburg and Breyer to remain on the Court for now, but it is not uncommon for Justices to retire at very advanced ages–such as Blackmun at 85 and Stevens at 90!

So do not expect that either will retire, but with a good chance of Democrats retaining the Senate majority in 2014, or regaining it on the back of the Democratic Presidential nominee’s expected major victory in 2016!