Thursday, September 01, 2011

Rick Perry: Right on Judges!


No, this is not a Rick roll

Rick Perry apparently supports something like Paul Carrington's proposal-- joined by legal academics across the ideological spectrum, including Sandy Levinson and myself--for 18 year "term limits" for Supreme Court Justices.

"Term limits" is actually a misnomer. The proposal does not actually end life tenure for federal judges; rather, it provides for a new Supreme Court appointment every two years and states that the quorum for deciding cases on appeal consists of the nine Justices most junior in service.

More senior Justices can still participate in choosing cases for granting certiorari and they can also pinch hit when a more junior Justice is recused or otherwise unable to participate. Therefore we should almost never have 4-4 affirmances by an equally divided Court, as has sometimes occured in recent years. For example, if Justice Kagan were recused on a particular matter, the tenth most junior Justice in years of service (David Souter, who under this plan would not have needed to retire) would replace her.

The President and the Senate, knowing that there will be an appointment every two years, and that older Justices could still sit in special situations, would adjust the politics of judicial appointments accordingly. This might change the age at which people are nominated to the Supreme Court, and therefore increase the pool of available candidates.

As Carrington explains, it's possible to do this through ordinary legislation. There is nothing in the Constitution that requires that all of the Justices sit on every case; in the federal courts of appeals, all of the judges sit together only in a small number of en banc cases (in which judges on senior status normally do not participate).

For those of you who enjoy fantasy sports leagues, here's an example of how this model would have worked in practice, going back to 1951.

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