Don't Let Judges Serve for Life

Don't Let Judges Serve for Life
Posted by CN Staff on May 26, 2005 at 07:48:56 PT
By Jeff Jacoby, Globe Columnist
Source: Boston Globe
Washington, D.C. -- The deal that pulled the Senate back from the brink of a shootout over judicial nominations this week didn't really settle anything. Odds are the deal will collapse as soon as the next vacancy opens up on the Supreme Court. Assuming President Bush sends up a nominee whose ideological profile matches those of the sitting justices he says are his favorites -- conservatives Antonin Scalia and Clarence Thomas -- Democrats and Republicans will square off and the Senate will be back at the OK Corral.
But how could it be otherwise? The Supreme Court has become an immensely powerful institution, one that sets national policy on contentious issues from abortion to race to property rights. Is prayer permissible at a high school commencement? The Supreme Court decides. Can Congress ban political ads that mention candidates by name? Ask the Supreme Court. May a state execute a 17-year-old murderer? Prohibit flag-burning? Authorize medical marijuana? It's up to the Supreme Court.Alexander Hamilton described the judiciary as the ''least dangerous branch," since it had no authority to appropriate funds and no way to enforce its decisions. But federal courts today exercise powers the Framers never gave them. They overturn laws passed by legislators, constitutionalize rights not enumerated in the Constitution, even determine the outcome of a presidential election. And if that doesn't make them potent enough, federal judges hold their jobs for life. They are unelected, unaccountable -- and enormously influential. Is it any wonder that judicial appointments are fought over so fiercely? So much is riding on the outcome.Ultimately, the only way to reduce the acrimony is to make the judges less powerful. That could be accomplished by eliminating judicial review or enacting limits on the courts' jurisdiction. But there is an easier and more realistic approach: Do away with lifetime tenure.When the Constitution's authors established a judiciary with unlimited terms, adult life expectancy in the United States was around 40 -- half of what it is today. Between 1789 and 1970, Supreme Court justices served an average of just over 15 years and retired at 65 1/2. Since 1970, justices have stayed on the court for an average of 25.5 years, and their age at retirement has climbed to nearly 79. That isn't what the Framers had in mind.No president can hold power for more than eight years, but the most junior member of the current court -- Stephen Breyer -- has already been there for 11 years. Two others, John Paul Stevens and Chief Justice William Rehnquist, have been on the court for more than 30 years.For at least four reasons, this is not a good thing.First and most obviously, lifetime tenure vastly increases the stakes in filling each Supreme Court (and Court of Appeals) vacancy. Senate battles over judicial nominations would not be so bitter if the consequences of losing weren't likely to persist for decades. Second, high court justices are tempted by the current arrangement to time their resignations for political reasons. Liberal judges have an incentive to stay on the bench until Democrats control the White House and/or the Senate, while conservatives wait until Republicans are in charge.Third, as law professors Akhil Reed Amar of Yale and Steven Calabresi of Northwestern wrote in 2002, ''life tenure encourages presidents to nominate young candidates with minimal paper trails and maximal potential to shape the future" -- by passing more experienced individuals whose resumes might trigger an ideological assault. And fourth, with justices staying on the court longer than ever, the judiciary is deprived of regular infusions of new blood. Result: a decrease in intellectual vigor and awareness of contemporary culture.The argument in favor of life tenure for federal judges is that it strengthens them against political attack and outside influence, making it easier to render unpopular decisions without fear. ''The Constitution protects judicial independence not to benefit judges," Rehnquist wrote in his 2004 year-end report on the federal judiciary, ''but to promote the rule of law: judges are expected to administer the law fairly, without regard to public reaction."But life tenure can be replaced with fixed judicial terms without weakening the autonomy of the federal judiciary. No one questions the independence of the governors of the Federal Reserve, who like judges are appointed by the president and confirmed by the Senate but who are limited to 14-year terms. Likewise the comptroller general -- the federal ''watchdog" -- whose term lasts 15 years.Why not a similar arrangement for high-ranking federal judges? Amending the Constitution is never easy, but the situation cries out for reform. Senators shouldn't have to threaten each other with ''nuclear" attack in order to bring judicial nominees to a vote. If there were less at stake -- if Supreme Court and appeals court judges no longer served for life -- they would no longer feel the need to do so.Source: Boston Globe (MA)Author: Jeff Jacoby, Globe Columnist Published: May 26, 2005Copyright: 2005 Globe Newspaper CompanyContact: letter globe.comWebsite: Justice Archives
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Comment #14 posted by Hope on May 26, 2005 at 21:45:32 PT
More, very interesting, Dr. Livergood work
Expanding Human Consciousness
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Comment #13 posted by Hope on May 26, 2005 at 21:21:36 PT
Sound familiar?"The essential problem is that Americans have been lying to themselves for so many years now that they are completely incapable of telling the difference between the rather frightening truth and their mythological view of America. The roots of the problem go back to the 1930's, but the real problems began right after the Second World War, when the American government came under the control of the group of thugs who still run the country. There has been a carefully planned program of complete domination of all sources of information through total media control, the creation of the 'think tank' system to manufacture policy, the establishment of entrepreneurial right wing religion as a method of political control, the use of political contributions to buy politicians, and, if all else fails, simple violence. It is now a country where anyone who could do good is marginalized or assassinated, and changes in government are at least as likely to occur by coup d'etat than by the operation of democracy. There is no longer even the necessity to hide the fact that the country is run entirely for the benefit of certain large pools of capital. The essential lies that Americans tell themselves, which mainly have to do with class structure and, even at this late date, race, infect every major political issue in the country - crime and the incarceration industry, health care, the 'war on drugs', education, immigration including the racist response to 9-11, the environment, poverty and the extraordinary creation of what is really a new caste system consisting of a permanent underclass (something that has happened, unnoticed, only in the last few years), and even American foreign policy."(Is Global Warming really Dr. Livergood?)
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Comment #12 posted by Hope on May 26, 2005 at 20:49:35 PT
Oops, sorry...
Misspelled your name. Rykyr!This is fascinating reading. Thank you.
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Comment #11 posted by Hope on May 26, 2005 at 20:46:43 PT
Reyker, Thank you!
At the moment, I'm only about half way through the good Dr. Livergood's (sorry, couldn't resist) 
and already I'm amazed at what he's saying. There are so many things that I want to copy and paste here... it's what so many of us have been saying for so long. "They lie and make people believe it is the truth; they proclaim their diseased minds as the measure of human and social orderThey can "get away with murder"--do whatever they want to without any possibility of facing consequencesThey manipulate most people's minds by controlling what ideas are disseminated--because they own the major communication outlets: TV, newspapers, publishing"" The world of delusion, ignorance, violence, and tyranny is so pervasive at present --has infected and deformed so many people's minds and souls--that most Americans don't even see it--or do anything about it even if they happen to notice it for a moment.""...the destruction of Constitutional liberties is ongoing, men and women are sent to Iraq to die for oil and Halliburton profits, and working class Americans are ground into the dirt. People throughout the world have become so accustomed to and benumbed by this "shadow world" of ignorance, repression, and tryanny that they no longer see the world clearly if at all.""  "To be deceived or uninformed in the soul about true being [peri ta onta] means that 'the lie itself' [hos alethos pseudos] has taken possession of 'the highest part of himself' and steeped it into 'ignorance of the soul.'"
  Plato, Gorgias (382a-b)   Philosophy must be engaged in social-political analysis, because the order or disorder of a society shapes its citizens' minds and souls. All persons who want to safeguard their minds and their souls must engage in philosophy, in the sense of searching assiduously for the truth: what is really happening in the world.   Ordinary people can be "philosophers" through resisting the mind-manipulation of a Karl Rove or any other of the members of the Bush II junta. A philosopher is any one who resists the attempt by the world of untruth to corrupt his soul, his higher self. Any genuine philosophy at present is subversive of the world of untruth created by the criminal cabal. If you read something by a so-called contemporary philosopher that isn't struggling against the current form of tyranny, then you know that he's not genuine."
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Comment #10 posted by Reykr on May 26, 2005 at 15:18:09 PT:
Dr. Norman D. Livergood
I publish a blog at this address: is one of the items that were in today's entry:The Latest Ideas From Norman D. Livergood, A PhilosopherRichard Nock, a Libertarian friend of mine here in Cedar Falls, Iowa, just today e-mailed me these internet links below, about Norman D. Livergood. I've known Dr. Livergood since 1966. Here's how it came about:In 1957, I read Harvard Professor B.F. Skinner's book "Walden Two," for a psychology course at Iowa State. In 1963, "Harper's" magazine had an article, in the April issue, about Skinner and his interest in creating such an experimental community. I wrote to him a couple of times after that, and he replied with optimism.In 1965, I became interested in helping with his goal, so I placed an ad in the July issue of the "New Republic," looking for people who were interested in the Walden Two idea. Quite a few people responded, so I placed similar ads in a number of other publications, and got more responses.Some of the people who replied lived in Atlanta, and I encouraged them to start a newsletter, named, "Walden Pool." It was to be a "pool" of ideas, as well as an allusion to Henry David Thoreau's "Walden Pond."In one of the 1966 issues, my Atlanta friends published a manuscript by someone new to me, namely Dr. Livergood, a Yale Ph.D. in philosophy. He was then teaching at the Edwardsville branch of Southern Illinois University. I'm not sure how he came in contact with them, but his article was an interesting one.The Atlanta group went on to participate in the establishment of the Twin Oaks Community, in Virginia, in June of 1967. I visited there for a couple of weeks, when it was getting started, and then went on to visit Professor Skinner, in Massachusetts, and to organize an Intentional Community Convention at the Allerton Park Conference Center of Illinois University, in late August of the same year. The link below is the one I just found, by a Google search, about Thomas More and his writing, including "Utopia." next two links are the ones that Richard Nock sent, about Dr. Livergood:Dr. Livergood Says Philosophy Can Fight Tyranny. One-Party System Has Arrived. 
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Comment #9 posted by Hope on May 26, 2005 at 12:21:12 PT
Enough with the quotes now, before someone accuses me of having nothing worthwhile to say myself...which I don't. I do like reading famous quotes, though. They can be comparable to sowing seeds in a fertile field, the open mind. They can be like little brain vitamins and they can be a comfort, in that they let us know that others share our thoughts and can more cleverly or astutely put them to words than we might have been able to do.
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Comment #8 posted by Hope on May 26, 2005 at 12:13:42 PT
"power to control men's minds"
"Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
~ Thurgood Marshall (1908-1993) American civil rights activist, first black American Supreme Court Justice
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Comment #7 posted by Hope on May 26, 2005 at 11:27:41 PT
Politicians in government...
"Politicians in government should be changed regularly, like diapers, for the same reason."
~ Richard Davies (c. 1505-1581) 
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Comment #6 posted by FoM on May 26, 2005 at 10:49:14 PT
I know that some older people don't get out of touch. I'm sorry and I shouldn't have generalized like I did. What I meant is the older a person gets the more they lose touch with young people and what they believe. The older a person gets the more they get set in their ways and it's just hard for them to relate. When it comes to making laws that is my concern. 
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Comment #5 posted by Hope on May 26, 2005 at 10:40:16 PT
FoM, comment 3
Not all older people lose touch as much as I imagined when I was younger. I do agree completely with the rest of what you said.
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Comment #4 posted by Hope on May 26, 2005 at 10:13:20 PT
Concerning comment 1
Here's the actual url to the entire blog and not just the comment there I was referring to.
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Comment #3 posted by FoM on May 26, 2005 at 10:09:16 PT
Out of Touch
What worries is when a person gets up in years they become out of touch with what the majority of people feel is important. I think if Bush could get pro lifers in he would and Roe vs Wade could be overturned. I don't believe in Abortion but like a bumper sticker said years ago.If you don't believe in abortion don't get one.
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Comment #2 posted by Hope on May 26, 2005 at 10:04:25 PT
Jeff Jacoby's article
The fact that they aren't elected is one of the few things that allows me to have a bit of confidence in them of not being overtly political, but I do think that Jacoby's suggestion of limits on their terms and them still being in the position of not having to answer to political ends is worthy of consideration.Of course, even with the protection that they have in tenure, we have all seen decisions from them that are obviously overtly political. Maybe we need untamperable computer judges, loaded with nothing but the Constitution, to ensure that they are all about protecting our rights and the Constitution and nothing else.
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Comment #1 posted by Hope on May 26, 2005 at 09:50:44 PT
Off Topic
But, I thought some of you might be interested in checking out this blog by an academian and, I think, a Mensa member who found CannabisNews because of a comment from our E_Johnson, and mentions his discovery in his pleasant and informative blog.
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