Yes Virginia, that's why the sun comes up

Right? Left? Centre?
Political news and debate.
Put your views and articles up for debate and destruction!
Post Reply
User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Patrick Allen, a Democrat from Logan, Utah, is one of those with hardly any confidence in the court. Allen, 33, said he feels as though justices generally vote on issues based on the party of the president that appointed them. “They’re sticking more to their guns along the lines of their party instead of the Constitution,” he said.
Maybe someone could explain to this silly person why presidents nominate men and women. Something to do with how they are likely to interpret the Constitution, innit?

AP-NORC poll: 2 in 3 in US favor term l ... r justices
WASHINGTON (AP) — About 2 in 3 Americans say they favor term limits or a mandatory retirement age for Supreme Court justices, according to a new poll that finds a sharp increase in the percentage of Americans saying they have “hardly any” confidence in the court.

The poll from The Associated Press-NORC Center for Public Affairs Research finds 67% of Americans support a proposal to set a specific number of years that justices serve instead of life terms, including 82% of Democrats and 57% of Republicans. Views are similar about a requirement that justices retire by a specific age.
That's the ticket. Be mad that the justices tend to favor the judicial leanings of the president that appointed them, and let's have presidents appoint more of 'em more often. Problem solved!
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

ex-khobar Andy
Posts: 5419
Joined: Sat Dec 19, 2015 4:16 am
Location: Louisville KY as of July 2018

Re: Yes Virginia, that's why the sun comes up

Post by ex-khobar Andy »

If you 'interpret' the Constitution to mean whatever you want it to mean, that's pretty much proof that it's an irrelevant document. And of course both sides do it.

Alito: 'The Constitution makes no reference to abortion.'

Me: 'The Constitution makes no reference to AR-15s, traffic lights and cancer. Let's make 'em all illegal.'

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

ex-khobar Andy wrote:
Tue Jul 26, 2022 10:31 am
If you 'interpret' the Constitution to mean whatever you want it to mean, that's pretty much proof that it's an irrelevant document. And of course both sides do it.
No, Virginia. Only obese, tattooed folks with specially-ripped jeans and a vape habit shopping at Dollar Tree think that courts 'interpret' the Constitution to mean whatever you want it to mean'.

IMO the pivot point is strict interpretation vs living document which themselves contain many nuances. For example, how do YOU interpret that Federal judges "serve during good behavior"? Strictly speaking, "behavior" does not mean longevity (in life or service) - therefore there can be no limitation other than "behavior" unless there is an Amendment to the Constitution.

But if you would like to define "behavior" as meaning "them did stuff what I didn't like, innit", then perhaps you fall on the "living document" side of the fence. But it seems to me that an Amendment would still be called for - unless we surrender to the "majority party in Congress can vote a judge out because he/she isn't behaving like our party" school.
ex-khobar Andy wrote:
Tue Jul 26, 2022 10:31 am
Alito: 'The Constitution makes no reference to abortion.' Me: 'The Constitution makes no reference to AR-15s, traffic lights and cancer. Let's make 'em all illegal.'
Also nominated, Mr. Andy for a supporting role in "Very Silly Equivalences as Noted in Podunk, Pa."
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

Well Meade--the House and Senate hold the same impeachment power over any federal judge as they do for the president; they can impeach even a SC justice for almost any reason they choose (who could stop them), but happily they have wielded this power rarely (and only once with regard to a SC justice (when Jefferson was president), and even then the Senate did not vote to convict and remove. If we truly want an independent judiciary, we should all fervently hope they continue to take this obligation seriously and continue to exercise it judiciously (no pun intended). But who knows where they are going to go?

Fairly recently, I recall Clinton using the impeachment of a federal judge (he was in favor of it based on recent rulings), and a number of appellate judges signed on to letter condemning this. I don't think the judge was removed, but I am not certain.

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Indeed, and to the point:
The crux of the controversy lay in the question of whether Samuel Chase acted on “good behavior” by upholding the rule of law as it was presented. To most, except some of the most ardent Antifederalists, Chase’s actions were justifiable since he was doing his job as a Supreme Court justice, even though he was following laws that overlooked an individual’s rights
I wonder Big RR, if one puts the name "Taney" in place of "Chase", does that still seem accurate? Or "Alito" etc.?
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

Perhaps, perhaps not. The thing I think we have been "lucky" with is that the justices on the SC are generally fairly well respected legal scholars and jurists who care more for the rule of law than for politics. Sure, there have been some significant departures (which can be a way the law progresses, but it is interesting to see that impeachment has not been a threat the legislature has used to control the judiciary (this may well change, but I sincerely hope not). But, given the make up of the current SC, there has been a major departure from nominating/approving distinguished scholars/jurists, to those selected for their political views that are not likely to change. While politics was always a factor in nomination/approval, it seems to have become almost the chief determinant of the fitness of a candidate, so who knows where we are going.

Personally, I see the situation we are in to that of FDR when he proposed the court packing plan to get his policies accepted; indeed, we have had discussions of a similar plan now. Will there be another switch in time to save nine? We shall see.

FWIW, Taney is a difficult case, because he must (or at least should) be considered in the context of the time. For example, I guess he could have skipped the question in Dred Scott declaring it a political question (he did that in other cases and it did basically overrule the legislative compromises, but then, if we concede that the Constitution recognized that ownership of persons as property as legal (and slavery was not ended until the 13th amendment), one could make a case that slave owners could not be deprived of their rights to their property because the "property" was situated in a non slave state. Sure it's outrageous (even morally indefensible), but when you consider Lincoln (no stranger to trampling on people's their Constitutional rights if they didn't agree with him politically) didn't dare to try to apply the emancipation proclamation to the Union (and slavery remained in a number of union states), I think it shows the views of the time were quite different from now.

User avatar
Sue U
Posts: 8545
Joined: Thu Apr 15, 2010 4:59 pm
Location: Eastern Megalopolis, North America (Midtown)

Re: Yes Virginia, that's why the sun comes up

Post by Sue U »

MajGenl.Meade wrote:
Tue Jul 26, 2022 11:11 am
IMO the pivot point is strict interpretation vs living document which themselves contain many nuances. For example, how do YOU interpret that Federal judges "serve during good behavior"? Strictly speaking, "behavior" does not mean longevity (in life or service) - therefore there can be no limitation other than "behavior" unless there is an Amendment to the Constitution.

But if you would like to define "behavior" as meaning "them did stuff what I didn't like, innit", then perhaps you fall on the "living document" side of the fence. But it seems to me that an Amendment would still be called for - unless we surrender to the "majority party in Congress can vote a judge out because he/she isn't behaving like our party" school.
Actually, no. The constitutional question for mandatory retirement isn't "good behavior" but what is meant by "hold their office." As the law stands now, an Article III judge or justice can retire from active service and assume "senior status" while still performing some judicial functions. 28 USC s 371. A Supreme Court justice may still "hold the[] office" although his/her duties may be reduced; making such status mandatory only requires an amendment to the judicial retirement statute, not the Constitution -- which says nothing about the number of Supreme Court justices or their judicial duties in either "active" or "retired" status.
GAH!

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

That's an interesting approach Sue and it may work, but have we ever had any SC justice accept senior status? My guess is not but I am not sure.

One thing you are absolutely right on is that Congress can set the number of Supreme court justices at whatever number they want, although they cannot later reduce it by requiring some to leave (by retirement or whatever), so if they expand the court, we will likely be stick with that number for some time.

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Sue U wrote:
Tue Jul 26, 2022 3:59 pm
Actually, no. The constitutional question for mandatory retirement isn't "good behavior" but what is meant by "hold their office." As the law stands now, an Article III judge or justice can retire from active service and assume "senior status" while still performing some judicial functions. 28 USC s 371. A Supreme Court justice may still "hold the[] office" although his/her duties may be reduced; making such status mandatory only requires an amendment to the judicial retirement statute, not the Constitution -- which says nothing about the number of Supreme Court justices or their judicial duties in either "active" or "retired" status.
That is argued indeed. However, the key issue there (aside from the fact that the decision in Booth was (a) based on an issue of compensation and not term limits/mandatory retirement and (b) applicable to judges who voluntarily took senior status but were available to determine some cases. In holding that a senior judge continued to "judge" then he (or she these days) must still hold the office of judge, they had no intention of declaring that Congress could apply either mandatory retirement or term limits to their own office of Justice of the Supreme Court*.

The Notorious RBG held that the "good behavior" clause ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. Reflections on the Independence, Good Behavior, and Workload of Federal Judges the John R. Coen Lecture Series University of Colorado School of Law, 55 U. Colo. L. Rev. 1, 3 (1983). I suppose it could be argued that Congress is not technically "superior". [Lawyers will parse anything except the Grey Poupon :lol:]

*Or so I understand - being neither a lawyer nor playing one on TV. But I can copy and paste with the best of 'em.
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Big RR, re Taney, I think you hit all the high notes. One more for consideration. I believe the decision (and Taney was one of the 7-2 majority), immoral though we consider it today, was based on a political reality of the time (including Buchanan's pending election campaign). That is, Taney's notion that the SCOTUS should not legally determine that slaves were people. Not that they couldn't so determine - but they shouldn't for fear of exacerbating, even igniting, the inter-sectional conflict that was becoming ever more likely. Of course, Taney brought about the opposite of his desire by neither refusing to hear the case at all nor restraining himself from using Scott to gratuitously rule the Missouri Compromise invalid.

It's a commentary on the times that he and Lincoln found themselves on the opposite side again in Merriman, a case where Taney (outside the SC) ruled correctly on habeas corpus. One of those examples of Lincoln trampling the Constitution that you mentioned. :roll:
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

Not sure why you inserted the eye roll; are you trying to say Lincoln didn't trample on Constitutional rights? If so, I am suprised you said Taney ruled correctly in Merriman. But I presume you included for a reasons.

User avatar
Sue U
Posts: 8545
Joined: Thu Apr 15, 2010 4:59 pm
Location: Eastern Megalopolis, North America (Midtown)

Re: Yes Virginia, that's why the sun comes up

Post by Sue U »

Big RR wrote:
Tue Jul 26, 2022 5:26 pm
That's an interesting approach Sue and it may work, but have we ever had any SC justice accept senior status? My guess is not but I am not sure.
It depends on whether the resignation is tendered under 28 USC 371(a) (general resignation, with annuity equivalent to salary) or 28 USC 371(b) (retire but continue salary and retain office). Stephen Breyer, Anthony Kennedy and JP Stevens all retired under 371(b) and retained "senior status," subject to certification by the Chief Justice. Sandra Day O'Connor tendered only a general resignation, although not specifically citing subsection (a).
MajGenl.Meade wrote:
Tue Jul 26, 2022 5:56 pm
In holding that a senior judge continued to "judge" then he (or she these days) must still hold the office of judge, they had no intention of declaring that Congress could apply either mandatory retirement or term limits to their own office of Justice of the Supreme Court*.
The obvious idea behind the constitutional provision is that federal judges should not be subject to economic reprisal or removal because of political considerations. However, a mandatory retirement age applicable to all justices does no such thing. Moreover, Breyer, Kennedy and Stevens (until his death) retained the office of Supreme Court Justice (assuming they have held themselves available for service at the administrative discretion of the Chief).
GAH!

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

Sue--I'm not sure, but I do not think they retained any status within the Supreme Court (Other than aphyscal office in the courthouse), although they could serve on district courts or appellate panels, correct? It would be interesting to see if this would be viewed as retaining their office as a justice. If so, I guess mandatory retirement could still comply with the Constitution, but I think it cold go either way.

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Big RR wrote:
Tue Jul 26, 2022 6:35 pm
Not sure why you inserted the eye roll; are you trying to say Lincoln didn't trample on Constitutional rights? If so, I am suprised you said Taney ruled correctly in Merriman. But I presume you included for a reasons.
Silly of me. Lincoln's status as demi-god doesn't allow of much criticism. That's my eye-roll. Illegal searches, seizures, destruction of free speech, and so on were just nuts to "Honest" :roll: Abe. It's a fine debate as to whether we should criticize his very unconstitutional means of providing us with what we of course regard as a much improved Constitution or salute the achievement.

Got two books you might check out at the local biblio - Waldstreicher's "Slavery's Constitution" and Feldman's "The Broken Constitution - Lincoln, Slavery, and the Refounding of America"
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

The obvious idea behind the constitutional provision is that federal judges should not be subject to economic reprisal or removal because of political considerations. However, a mandatory retirement age applicable to all justices does no such thing.
Not obvious that a mandatory retirement age "does no such thing". Political considerations are very germane to the issue.

Of course it's political. All of the term limit plans involve giving every president at least 2 appointments in four years or encourage the appointment of younger and younger judges (to defer the mandatory retirement age). In either case, justices will be perceived to be playing to the gallery as their departure gets closer - attempting to curry favor with administrations to get a better job. Politicizing SCOTUS is aided and abetted by limitations on the length of term in office. The justices will be more beholden to party than they are now.

Why no comment on Booth which proponents trumpet as showing the SCOTUS itself agrees that senior status = still in office, although you brought it up indirectly as a supporting argument? I'd accept "because I'm a real lawyer and don't want to waste time arguing a case with ignorant amateurs" :ok
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

Burning Petard
Posts: 4050
Joined: Fri Feb 12, 2016 5:35 pm
Location: Near Bear, Delaware

Re: Yes Virginia, that's why the sun comes up

Post by Burning Petard »

So what is a 'senior judge'? I seem to remember S D O'Connor doing some judicial work with official standing and results after she retired. Now we have another 'retired' SC justice. What happens to their pay in this situation? Do we now have eleven justices on the payroll? (maybe more. I have lost track of how many Justices have retired and if they have since died) According to wikipedia O'Connor is still receiving the same pay as a full time acting SC Justice, even though she is probably mentally incompetent to even supervise her own activities. Then again, the kind of care she should have is scary expensive. That is a constant fear for many people my age.

And yes it is not particularly rare for Congress to impeach a sitting judge in a lower federal court, usually over bribes.

snailgate

Big RR
Posts: 14050
Joined: Thu Apr 15, 2010 9:47 pm

Re: Yes Virginia, that's why the sun comes up

Post by Big RR »

I don't know about the number, but as federal article 3 judges have essentially a lifetime tenure and cannot be dismissed (except for impeachment), senior status is a way to remove them from active participation in court activities and still say they maintain the office. The do get full pay, but it is a pretty small cost to maintain an independent judiciary IMHO (probably a lot less than the cost of a minute of one of our silly wars/foreign policy adventures).

One thing I do not know is whether senior status can be forced upon a federal judge (I think many states permit this based on age or the recommendation of the chief judge or a committee). Perhaps Sue knows.

As for impeachment, in the history of the US, only 15 federal judges have been impeached (and 8 convicted), so it is fairly rare (although I imagine some resigned to avoid impeachment).

User avatar
Sue U
Posts: 8545
Joined: Thu Apr 15, 2010 4:59 pm
Location: Eastern Megalopolis, North America (Midtown)

Re: Yes Virginia, that's why the sun comes up

Post by Sue U »

Burning Petard wrote:
Tue Jul 26, 2022 11:16 pm
So what is a 'senior judge'? I seem to remember S D O'Connor doing some judicial work with official standing and results after she retired. Now we have another 'retired' SC justice. What happens to their pay in this situation? Do we now have eleven justices on the payroll? (maybe more. I have lost track of how many Justices have retired and if they have since died) According to wikipedia O'Connor is still receiving the same pay as a full time acting SC Justice, even though she is probably mentally incompetent to even supervise her own activities.
Because Article III judges and justices are constitutionally appointed for life, they get a salary as long as they serve. The only economic incentive for retirement is continuation of remuneration. Justices who retire under Section 371(a) no longer "hold office" or perform any (even nominal) judicial function, so technically they do not receive a salary (pay for services) but instead get an annuity equivalent to salary. Those who retire under 371(b) still serve in senior status, although with significantly reduced obligations, and therefore still hold office, so they continue on salary as long as they remain in senior service.
Big RR wrote:
Wed Jul 27, 2022 12:57 pm
One thing I do not know is whether senior status can be forced upon a federal judge (I think many states permit this based on age or the recommendation of the chief judge or a committee). Perhaps Sue knows.
As the statute currently reads, assuming senior status for federal judges is entirely voluntary. Most states, like ours, have a mandatory retirement age for their judges. Here in NJ, retired judges can continue to serve on "recall" status, which is helpful since we have a chronic shortage of trial court judges as well as funding for those positions. Since retired judges in NJ get 3/4 of their salary as a retirement benefit, having them fill otherwise vacant spots saves the state money even if they are brought back up to full salary on recall.
MajGenl.Meade wrote:
Tue Jul 26, 2022 8:08 pm
Of course it's political. All of the term limit plans involve giving every president at least 2 appointments in four years or encourage the appointment of younger and younger judges (to defer the mandatory retirement age). In either case, justices will be perceived to be playing to the gallery as their departure gets closer - attempting to curry favor with administrations to get a better job. Politicizing SCOTUS is aided and abetted by limitations on the length of term in office. The justices will be more beholden to party than they are now.
That is simply not true. All federal judicial terms are limited -- currently by death or debilitating infirmity --so the incentive is always to appoint younger judicial officers (the most recent Supreme Court appointments -- Jackson, Barrett, Gorsuch and Kavanaugh -- are all still in their 50s; Thomas was 43 when appointed). And because federal judicial salary (or equivalent) is for life, there is no "better job" to which any justice is likely to move on as a political appointee after, say, age 70 or 75. Even if there were, "playing to the gallery" in judicial opinions would be wholly unnecessary as the prestige of simply having been a Supreme Court justice (or other federal judge) is more than enough to secure any position a retiree might want (Breyer is joining the faculty at Harvard, for what that's worth).
MajGenl.Meade wrote:
Tue Jul 26, 2022 8:08 pm
Why no comment on Booth which proponents trumpet as showing the SCOTUS itself agrees that senior status = still in office, although you brought it up indirectly as a supporting argument? I'd accept "because I'm a real lawyer and don't want to waste time arguing a case with ignorant amateurs" :ok
Frankly, it's because I haven't read it and don't think I should argue things I don't know anything about. :oops: I will take a look when I have a chance, but right now I am in the middle of a fight with a state agency, which is sucking up all my case-reading time.
GAH!

User avatar
MajGenl.Meade
Posts: 20706
Joined: Sun Apr 25, 2010 8:51 am
Location: Groot Brakrivier
Contact:

Re: Yes Virginia, that's why the sun comes up

Post by MajGenl.Meade »

Thank you, Sue. As always, interesting and informative. And as ever, I am not as clear and cogent.

By "playing to the gallery" I had in mind cozy deals with an Administration to rule their way with an understanding that when the term limit is reached, there's a job as Ambassador to France (or Pakistan if they didn't do a good job).

"there is no "better job" to which any justice is likely to move on as a political appointee after, say, age 70 or 75" - i take your point but think you assume nice people like you and me. If I knew my job was over in just 12 months from age 69 (say) or perhaps even 74 (mandatory retirement), and I wanted to get ahead in politics rather than go to academia, pleasing a sitting President might get me a job I was hankering for - Secretary of State maybe. Especially if the guy/gal was a shoo-in for reelection or had just been re-elected. In fact, at my most fake-Machiavellian, I could see a guy like Trump getting a justice on board at age 68 with a promise of power two years later. Or is it just paranoia? :shrug

Then there is the certain knowledge outside the Supremes that Justice X will leave in February - therefore either hold back on filing, in expectation that the current President will get you a more amenable person / or file precipitately in the hope of getting the thing done while Justice X is still on board. (or it might be two justices leaving, here and below). Justice either hastened or delayed is not good (though I expect such considerations go into appeals thinking today, they are not based on certainty of changes on the bench).

And there's the inside the Supremes question - perhaps delaying a vote on cert because Justice X is leaving, or voting for cert to keep X (and perhaps Y) in the mix - depending on what the political end-game is, Admin-wise.
For Christianity, by identifying truth with faith, must teach-and, properly understood, does teach-that any interference with the truth is immoral. A Christian with faith has nothing to fear from the facts

Post Reply