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April 04, 2012 5:30 PM The “I” Word Again

By Ed Kilgore

University of Houston law professor David Dow has created a stir with a Daily Beast column suggesting that if the Supreme Court does strike down ObamaCare, the offending Justices (or presumably, at least one of them) should be struck down via impeachment. Here is Dow’s thundering conclusion:

We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.

That hearty populist perennial from a bygone age, term limits for judges! Court-packing! Wow! I’m sure the wingnutosphere will feast on these provocations for days!

While I enjoyed Dow’s piece and agree with much of his analysis (and more, since he doesn’t really dwell on the broader implications of a decision unraveling Commerce Clause precedents), I hope talk of the I-word doesn’t get popular on the Left. The institutional barriers that nearly killed the Affordable Care Act and did in fact water it down are nothing compared to those that inhibit impeachment (much less a constitutional amendment establishing judicial term limits). I don’t know when this hypothetical act would supposedly occur; I guess it would have to be after Democrats regain control of the House and win two-thirds of the Senate (a mathematical impossibility this year since only 10 Republicans seats are up). A second term for the president, with the power to appoint new Justices as openings occur, seems less of a reach.

Assuming, as I do, that Professer Dow fully understands the political realities, it’s not clear what exactly is to be gained by I-talk.

Unless, of course, my very worst fears are realized and the Court strikes down not just ACA but Medicaid and other federal-state programs as offending state sovereignty. Then, hell yes, the I-word, and every other word I could throw at counter-revolutionary Justices would fully enter my vocabulary.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • POed Lib on April 04, 2012 5:47 PM:

    Why not term limits? 18 years per justice, with a justice replaced every 2 years. The seat would not be filibusterable. That way, every president would get 2 at a minimum, all 2 termers 4.

  • Anonymous on April 04, 2012 5:49 PM:

    Oh yeah, forgot - IMPEACH CLARENCE THOMAS. The guy submitted 6-7 years of sworn statements (financial disclosure forms) falsely, which is a felony and would cost him his law license. He routinely appears and PROMISES results-oriented rulings. His wife gets a huge salary, because she tells him how to rule. IMPEACH!!

  • JW on April 04, 2012 5:57 PM:

    It's moot. Dems don't do impeachment. They're criminally* chickenshit, in fact. Everyone knows it, too, so why waste time talking about it?

    *(Impeachment wasn't the only thing removed from the table in 2006. So, too, was the last, best chance to bring America's war criminals to trial. The dems instead chose to shield the perps, and in the bargain inherited responsibility for their crimes).

  • Crissa on April 04, 2012 6:20 PM:

    They should be impeached for their activities, not their rulings.

    As already mentioned, their behavior has been atrocious.r

  • ericfree on April 04, 2012 6:23 PM:

    A little too late. The five who stole the 2000 election with Bush v. Gore should have been impeached, with tar and feathers added, on the spot. To paraphrase Trent Lott, if we'd done that then, we wouldn't be having all this trouble now.

  • TCinLA on April 04, 2012 8:02 PM:

    If the Court strikes down not just ACA but Medicaid and other federal-state programs as offending state sovereignty, it won't be time for the "I" word, it will be time for the 13-letter (including the use of the letter "s" four times) "A" word. Maybe even time for the second civil war the Southernists keep pining for. And this time we Finish Them.

  • Doug on April 04, 2012 8:21 PM:

    There's something rather interesting in the Constitution.
    First we have this:
    "Article II
    Section 4. The President, Vice President and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery or other High Crimes and Misdemeanors."
    Basically it sets the requirements for removing ANY civil officer, whether elected or appointed, of the Federal government.
    And, according to the Constitution, there's no set number of SC justices:
    "Article III
    Section 1. The judicial power of the United States shall be vested in one supreme Court...The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..."
    However there IS an additional standard that can be used for removing justices: "good Behaviour". Of course I wasn't there, but to me it seems as if the members of the Constitutional Convention were ADDING another method of ousting sitting Justices: besides the three items mentioned in Article II, justices, ALL justices, also had to meet the standard of "good Behaviour". I imagine "good Behaviour" was included as justices were the ONLY civil officers appointed to life tenures.
    Attempting to endow an inanimate, solely legal construct with the same political rights as any citizen, or at least one vitally important right, might very easily meet the Founders idea of not being "good behaviour". A legal construct such as, for example, a corporation?
    Can you say "Citizens United"?
    I thought you could...

  • IForOneSupportOurAlienOverlords on April 04, 2012 8:22 PM:

    The term limits question is interesting.

    In a way, we do have term limits on Supremes. Very generally speaking, older people are selected for the spot and the term is (on average) 16 years, which is two full presidential terms.

    I don't think that's particularly terrible. What is terrible is that Supremes are getting nominated at younger ages, and life expectancy is improving, especially for the elites in our society.

    I don't know what I think on this one. I'll leave it to our alien overlords to decide.

  • jcalchemist on April 04, 2012 8:40 PM:

    Scenario: SCOTUS overturns ACA. Obama wins with substantial coattails. Dem majorities in both houses pass legislation requiring the nine to buy their own goddamned health insurance.

    Good luck living by the heartless laws you seem to think the rest of us should abide by, y'all.

  • jjm on April 04, 2012 8:45 PM:

    I'm no fan of term limits; think of some of the great justices who served to a ripe old age yet stayed young in mind and completely ethical in their behavior.

    But what @Doug above submitted seems to be the ultimate essence of what is to be done with judges who have so egregiously not been 'behaving' very well ["Article III
    Section 1. The judicial power of the United States shall be vested in one supreme Court...The judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..."]

    I'm not sure we'd have to call it "impeachment" -- just note that Thomas and Scalia have not been practicing good Behaviour by permitting themselves to be wined and dined by the very people who have business before the court.

    They should simply be OUT.

  • mudwall jackson on April 04, 2012 9:12 PM:

    wow ...

  • wilder on April 04, 2012 11:14 PM:

    If we can't impeach them, what would be the impact of airing commercials against them, highlighting some of their more questionable behavior?

  • Anonymous on April 05, 2012 12:00 AM:

    justices are not immune to recalls in other countries and that could be done by popular votes (though it rarely happens, just like recall of governors).

    term limits might be good for members of congress, maybe not justices.

    by the way, i also think that equal access to basic health care should be one of the civil rights. government provides emergency care to anyone. why not basic health care?
    make basic health care a civil right and make it non-profit. why should private hospitals and insurance companies make profits off basic health care? it's not legal in other developed nations.

  • bob h on April 05, 2012 6:49 AM:

    The easier course of action might just be to shut the Court down. They could be defunded more easily then they could be impeached.

  • JEA on April 05, 2012 8:31 AM:

    So, Mr. Kilgore, you mean that liberals, who were outraged, outraged, OUTRAGED when Newt Gingrich said these types of things and vilified him as an un-American, dictatorial, and traitorous, would have absolutely no problem doing it themselves?

  • Hedda Peraz on April 05, 2012 8:43 AM:

    Like the cuckoo that lays its eggs in another birds' nest, over the last 200 years America has found its own nest more and more occupied by a 1% that is totally alien to the Founders' concept of a Nation.
    Good luck getting them out.

  • Speed on April 05, 2012 9:25 AM:

    We used to hear the same talk from the far-right back during the Warren Court days. Keep that in mind.

  • Shokai on April 05, 2012 9:41 AM:

    They should be impeached. This court has overstepped their powers. If you don't agree, this is what will happen if they have their way: http://youtu.be/fXrrDsiSzKA

  • The Fool on April 05, 2012 9:42 AM:

    You see, Ed, your attitude is part of the reason why the left is so weak today. Not that I think Dow's column was a stroke of genius, but at least he has a fighting attitude. That sends important signals to our enemies whereas your attitude simply confirms their suspicions that Democrats are a bunch of pussies.

    They didn't hesitate to impeach Clinton when they wanted to make a point. That effort failed to secure a conviction but their forward leaning energy allowed them to steal a presidential election by sheer force of political will a few years later.

    But the Ed Kilgores of the world always have to stick a finger in the air before they say what they think. The question is, Ed, do you think they DESERVE to be impeached or not?

  • low-tech cyclist on April 05, 2012 9:51 AM:

    I don't see what the big deal would be about term limits for Federal judges. You wouldn't want it to be 12 years or something like that; I'd suggest 25 years. It's a nice round number, and would limit just how far into the future a single President could shape the entire court system. It would also at least somewhat reduce the extent to which Justices could game their retirements to have their replacements chosen by a President sympathetic to their ideological leanings.

    If it were up to me, I'd apply the same limit to all levels of the Federal judiciary, with the clock starting over again if one is promoted from a district court to a circuit court, or from a circuit court to the Supreme Court.

  • rea on April 05, 2012 10:34 AM:

    Gingrich & Co. changed the rules of the game years ago.

    I wish he hadn't, but we'd be suckers to keep playing the game under the old rules, while the other side pays no attention to those rules--we'd be like a football team whose coach thinks it was wrong to change the game to permit forward passes, and which therefore doesn't do passing or pass defense.

  • Jimo on April 05, 2012 11:30 AM:

    This could be part of a progressive series of corrective amendments (right after "money is not speech" and "corporations are not people").

    Every President may nominate a Justice during each session of Congress (every 2 years). They serve for 25 years or until death. The precise number of Justices vary but there will never be fewer than 9.

    Doing this would de-emphasize the major drama surrounding every current nomination. That would allow less bland, 'crap shoot' nominees of whom nothing is known. By expanding the total number of Justices, greater variety of experience and viewpoints would be possible. Also, decisions would be less likely to be narrow (our present 5-4 outrages). Consequentially, change would move more slowly but predictably over time.

  • cmdicely on April 05, 2012 12:48 PM:

    Every President may nominate a Justice during each session of Congress (every 2 years). They serve for 25 years or until death. The precise number of Justices vary but there will never be fewer than 9.

    With that basic outline, you could have a fixed size court -- just shorten the term to 18 years to match the way the terms are staggered, and allow a midterm vacancy to be filled by an extraordinary appointment that lasts only until the end of the term. Provide further that a Justice that has served a full term, or more than half of a full term, cannot be reappointed to the Supreme Court.

    Maybe even preserve the lifetime character of judicial appointments by making appointments to the Supreme Court limited to people who are members of some other federal court (possibly by simultaneous appointment to both), and have each Justice return to their "home" court at the end of their term on the Supreme Court (but not if they retire, resign, or are removed by impeachment.)

    Consequentially, change would move more slowly but predictably over time.

    Increasing the frequency of appointments to the Supreme Court would not result in change moving more slowly.