Beaton: Reform the Supreme Court
The Aspen Beat
What do you call an exclusive eight-person club whose secret debates control the country and whose members are ages 68, 83, 62, 61, 56, 66, 77 and 79?
In America, you call it the Supreme Court.
The justices are old because they have lifetime tenure. Most never retire. Instead they die in office, as one did last winter at age 79, often after extended illness.
I’m not exactly young myself. In fact, I’m older than one of those justices. And as a person blessed with bountiful self-esteem, my respect for older people has grown in exact proportion to my progress in joining them. I like to think age has made me wiser.
But science says that older people have limitations. Some of those limitations are physical, but not all. My capacity for hard work and even hard play is not what it was. My analytical skills are not what they were.
Not only athletes peak in their 20s and 30s. Mathematicians and chess masters also do. Granted, lawyers peak later, in their 50s, partly because it takes a career to develop a reputation and a clientele.
But nobody in any line of work peaks in his 80s. Even organ donors peak before then.
In my career as a lawyer, I was privileged to practice before the Supreme Court. So for me, it was especially sad to see the oldest justice, 83-year-old Ruth Bader Ginsburg, embarrass herself and the court.
She gave a series of interviews on politics, one of which was with The New York Times. At a moment in that interview, the idea came into Ginsburg’s head to say that Donald Trump “says whatever comes into his head at the moment.” And so, say it she did.
It gets worse. She also aped attention-seeking B-list television actors in stating that if Donald Trump is elected she might move to New Zealand.
Have you ever noticed how lefties are always threatening to leave the country if their candidate gets beaten? It’s almost as if they love their candidate more than they love their country. And have you noticed how they never make good on their threat?
But this time it’s not a partisan issue. Even the liberal New York Times — the newspaper to which Ginsburg gave the interview — condemned Ginsburg’s remarks.
A few days later, Ginsburg’s office issued a statement that she “regrets” making the remarks (but is not apologizing).
Apart from the indecorousness, Ginsburg’s comments could have consequences for the court and the country. For example, if the election is contested, as it was in 2000 between George Bush and Al Gore, then Ginsburg might be disqualified from the case for having expressed a bias. If a future President Trump issues an executive order regarding immigration or Obamacare, as President Barack Obama has done many times, Ginsburg may be disqualified from a case contesting the constitutionality of his order.
Under an ethics rule, all other federal judges are specifically prohibited from endorsing political candidates or otherwise taking a position on a political election. Until now, Supreme Court justices wisely followed that rule. Ginsburg ventured into dangerous new territory.
Ironically, her bashing of Trump plays right into his anti-establishment theme, and on balance probably helps him more than it hurts him.
Ginsburg in her interview apparently failed to recognize any of these ramifications. One has to wonder if her judging skills have deteriorated as much as her judgment.
Here’s a suggestion: Let’s limit the terms of Supreme Court justices to 20 years. If they get appointed in their 50s, they can retire in their 70s on a date that is known well in advance.
We might thereby have fewer justices who are aged and sick. We’ll also avoid the spectacle and confusion of a once-good jurist embarrassing herself, embarrassing the court and compromising the court’s function.
Such a rule does not require a constitutional amendment. It simply requires the Senate to condition its confirmation of a nominated justice on his or her pledge to follow the rule.
There’s a reason judges wear dark robes and sit on an elevated dais behind an imposing desk. It’s because they don’t have a police force or a military arm to enforce their decrees. So their power is only as good as their respect.
You’re supposed to be intimidated by a judge’s appearance, because, if you aren’t, then she’s got nothing. The way we’re going, our Supreme Court will have nothing.
Imagine the power of a president — whether Republican or Democrat — who feels free to flout Supreme Court limitations on her power because she knows people don’t respect the court.
To see that system in action, maybe Ginsburg should move not to New Zealand, but to Venezuela.
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