January 30, 2012

A Good Idea Lost in the Weeds?

This may come as a surprise to you, dear reader(s), but I have not exactly spent my free time over the past several months pouring over the position papers and the like of the GOP presidential candidates. West Virginia’s primary is closed, and I’m not a registered GOPer, so aside from the entertainment value of watching them cannibalize each other, I’ve got no reason to spent a lot of analytical sweat on any of them.

So imagine my surprise when one of those GOP aspirants who has fallen by the wayside, Rick Perry, appears to have picked up on an interesting idea. Yes, I’m talking about this Rick Perry:
At Rancho Perry, every day was Oopsday. Along the trail, he forgot how many Justices the Supreme Court has (eight is not enough); forgot the name of one of them (Sonia Sotomayor); placed the American Revolution in the sixteenth century; identified the voting age (fixed at eighteen four decades ago by constitutional amendment) as twenty-one; and suggested that the chairman of the Federal Reserve is a traitor, that Turkey (a NATO ally of sixty years’ standing) is governed by Islamic terrorists, and that Social Security is not only a Ponzi scheme but also a criminal enterprise, a monstrous lie, and unconstitutional. And there’s this whopper, from his farewell speech: ‘As a former Air Force pilot, I don’t get confused.’
The idea is to amend the Constitution to remove the life term for Supreme Court justices and switch to one-time terms of 18 years, with a new justice being appointed every two years. It’s not Perry’s idea – law professors have been kicking it around for years – but he’s the first politician I’ve heard to pick up on it. The theory behind it is two-fold.

First, by making Supreme Court appointments more regular and more frequent, the rancor and partisan warfare that springs up around them would lessen. At first blush, that makes some sense. The chance to appoint a Supreme Court justice would no longer depend on an odd synergy of fate and political expediency. Every president would get his or her chance to appoint justices, at least two, during their time in office. Regularity would lead to a smoother process.

Given the current political climate, I’m not sure how far that idea would get in reality. Judicial vacancies in the lower courts happen much more often than Supreme Court vacancies and, given their subordinate role, ought to lead to less political rancor. The opposite is true, of course. Individual judicial candidates for the courts of appeals or district courts rarely get the kind of spotlight that potential justices do, but they still get held up by simple partisan bickering. Furthermore, the way in which regularly occurring political events (like, say, agreeing on a damned budget) get turned into partisan battles of will suggests that the regularity of some event is no guarantee that it will go more smoothly.

Second, the constant churning of membership on the Supreme Court would lead to less ideological dogmatism. Fresh blood and new ideas, combined with the inability of partisan politicos to lock in a justice for a term lasting decades, would benefit the Court and the litigants who appear before it. It would also allow for a broader range of prior experience in the justices appointed. I’m all for that. Why, if we had to roll through qualified candidates every two years, we might even get a defense lawyer on the Supreme Court! Alas, that’s just a pipe dream.

As is, ultimately, Perry’s proposal. Not just because his own candidacy flamed out so spectacularly. Amending the Constitution is seriously difficult, for good reason. The idea that enough people could get fired up for this kind of structural change (as opposed to something issue specific) is laughable. I suppose once the overwhelming majority of the citizenry is so apathetic about the whole process a mobilized cadre of legal geeks might get it done, but that’s the stuff of fiction, as far as I can tell.

Still, props to Perry for putting the idea out there. I’m not certain of whether it has any ultimate merit, but it’s a least a serious and thought-provoking proposal. In a campaign filled with “9 9 9” and grand plans for new states on the moon, that’s something to be proud of.

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