Posted by Jim Lindgren:
A CLOSER LOOK AT TERM LIMITS; PROBLEMS WITH THE CARRINGTON/CRAMTON PROPOSAL.�
Randy Barnett raises the [1]issue of term limits, which [2]I blogged
about a few weeks ago. There are at least three major questions to be
answered in deciding whether to endorse the Carrington/Cramton
proposal, or any specific proposal on term limits for the Supreme
Court:
1. Do you favor 18-year term limits for Supreme Court justices?
Such proposals date back over a decade to (as I recall) at least Greg
Easterbrook's. The Carrington/Cramton proposal from late 2004 and the
one that I discussed on CONLAWPROF about 4-5 years ago and the one
that Steve Calabresi and Akhil Amar proposed in a 2002 Washington Post
op-ed all opt for 18-year term limits.
2. Can this be accomplished by statute by retaining life tenure (with
reduced powers and responsibilities) or must such a change be
accomplished by a Constitutional Amendment?
Reasonable people can differ on this. The Carrington/Cramton proposal
opts for a statute. Early versions of the Calabresi proposal said that
either a statute or a Constitutional amendment were possible. The
draft that Calabresi and I are rewriting now calls for Constitutional
amendment, not a statute, as the wiser course, which was my initial
cut when Calabresi first raised the idea of Supreme Court term limits
with me back in 2000.
3. Which proposal do you favor?
Even if you are willing to endorse 18-year term limits and think it
can be done by statute, rather than by constitutional amendment, there
is still the question of which implementation of 18-year term limits
works best. I know that Calabresi, when he endorsed the
Carrington/Cramton proposal thought that it did much the same thing as
the proposal that he and I have been working on for years. But it
doesn't. (Obviously, between the two, he favors our proposal.) The
Carrington/Cramton proposal might still be better than the status quo
(I don't know), but I think the version that Steve Calabresi and I
developed is better on specifics--which of course one would expect us
to think of our own proposal.
I just read the Carrington/Cramton proposal for the first time last
night, and I think there are some serious problems with it. I will
leave aside for now some problems with their phase-in period (because
any proposal will have some potential oddities associated with the
phase-in period), and I will focus only on problems with the
Carrington/Cramton proposal once it is fully phased in and
functioning.
The Carrington/Cramton proposal provides BOTH that "the nine who are
junior in commission shall sit regularly on the Court" hearing cases
AND that "One Justice or Chief Justice, and only one, shall be
appointed during each [2-year] term of Congress." While under the
current law and any scheme that I have considered, the Senate always
has the power to delay approving and thereby to delay adding a justice
for strategic reasons, under current law and our proposal, the
President and the Senate have no power to REMOVE a justice from
hearing cases because they want to replace him or her. But under the
Carrington/Cramton proposal, they do. And this dispute would happen,
not just occasionally, but with almost every appointment.
Imagine if the Carrington/Cramton proposal were fully phased in today
and a Democratic appointee and strong liberal were the most senior
sitting justice. The Carrington/Cramton proposal provides that "One
Justice or Chief Justice, and only one, shall be appointed during each
[2-year] term of Congress." Accordingly, some in the Bush White House
would want the new Bush choice confirmed NOW in the first months of
the new Congress, so the new justice could bump a sitting Democratic
justice off the cases already being heard. The Democrats would
respond, "What's your hurry?" Under the Carrington/Cramton bill, they
could wait until late in 2006 to replace the current sitting justice.
Suppose that there is a major case coming before the Court late in
this term and the more political branches want the senior Justice
bumped off the Court that would hear the case. This would seem to me
to be highly disadvantageous.
Further, this power to remove sitting justices from hearing cases
(including from anticipated specific cases) at the discretion of the
other two branches would raise Separation of Powers concerns. Indeed,
giving the two non-judicial branches the discretion to set the end of
a particular justice's ability to hear cases routinely would make it
particularly inappropriate to try to do so by statute, rather than
Constitutional amendment. I don't think that the Carrington/Cramton
proposal can both urge a statutory solution and give the executive and
legislative branches the discretion over when during a 2-year window
to remove a sitting justice from hearing cases.
Further, suppose that the Bush White House gets its choice through in
February or March in the first year of the new Congress. The new
justice would obviously supplant the senior justice on cases on which
certiorari had not yet been granted, but what about cases on which
cert. had been granted, but the cases not yet argued? What about cases
argued but not yet decided? As I read the C/C proposal, the new
justice would sit immediately, probably bumping the senior justice off
cases heard but not decided: "The nine who are junior in commission
shall sit regularly on the Court." At the least, the application of
their statute to existing cases is unclear.
I apologize for not making our full specific proposal public now, but
(while its logic has been worked out and we have a draft provision) we
have not yet run it by those more skilled in legislative drafting. We
go for fixed terms of 18 years, each starting and ending in the
summers of odd years:
c. The Length of the Terms of Regular Service.
There shall be nine staggered full terms of Regular Service on the
Supreme Court, each approximately 18 years in length, with terms
beginning and ending every two years in odd numbered years. An old
term of Regular Service shall end and a new term shall begin on
July 1 of each odd numbered year if the Supreme Court has recessed
for the summer by that date. Otherwise, the term of Regular Service
shall begin and end on the first full day of recess after July 1,
but in no event shall the date for beginning and ending a term of
Regular Service be later than October 1 of the relevant
odd-numbered year.
Calabresi and I expect to make our draft, which has been circulating
in a limited form since 2001 or 2002, finally public in mid-March. At
that time, I will try to set out what I think are the chief merits and
demerits of our Constitutional proposal.
For the reason I set out above, while I strongly favor the idea of
18-year term limits, I do not favor the particular proposal put
forward Carrington and Cramton, though with revisions to track more
closely our proposal, I would probably favor it.
References
1. http://volokh.com/archives/archive_2005_02_13-2005_02_19.shtml#1108763212
2. http://volokh.com/archives/archive_2005_01_16-2005_01_22.shtml#1105903830
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