'It’s a purifying of the court - trying to return it to where it should be’
- Marjorie Dannenfelser, right-wing advocate
Where? Back to slavery?
The Supreme Court has emerged as a hot issue among the Republican presidential contenders, a be-careful-what-you-wish-for move that they may regret.
By calling attention to the Supreme Court and lower federal courts, they will remind voters that one of the president’s jobs is to nominate Supreme Court justices. Jimmy Carter won one disaffected citizen’s vote in 1980. This writer was ready to vote for independent John Anderson, even if his chances were slim, out of frustration with Carter’s presidential performance and aversion to Ronald Reagan’s policies.
Carter reminded flustered Democrats as to how Supreme Court justices get hired, and that was enough to convince me. President Obama can take advantage of this strategy in his re-election campaign.
Rick Perry happens to be right in urging term limits for Supreme Court justices in his book “Fed Up!” in which he writes in favor of proposals “to institute term limits on what are now lifetime appointments for federal judges, particularly those on the Supreme Court or the circuit courts, which have so much power.”
Term limits of 10 to 15 years, 20 years tops, would limit the damage that an unfit judge might incur. Perry’s idea of a bad judge probably differs from mine. It is true that the most brilliant judges would likewise be term-limited, but even the likes of Brandeis and Marshall are not indispensable. If we lack sufficient legal talent to replace the current crop, then we are in deep trouble.
It stands to reason that Supreme Court justices should be at the top of their game when they are nominated, the product of extensive experience which affords a sturdy foundation for legal wisdom. They would be in their late fifties at the least and would remain well past the traditional retirement age.
Presidents from both major parties play games with term limits so they would spend decades on the court. Clarence Thomas was 43 when the first President Bush nominated him and Elena Kagan was 50 when President Obama sent her name to the Senate. Kindergarteners would probably have their careers set if presidents could get away with it.
Perry and other contenders zeroed in on social issues, as catalogued in a New York Times piece, such as the usual suspects - abortion, same-sex marriage and the role of religion in public life. That could help inspire the GOP base and win backing in the primaries.
Dannenfelser, president of the Susan B. Anthony List, which is described as a conservative legal advocacy group, told the Times, “There’s an even more dramatic overstep on the part of the courts now. With the grass-roots revolution on the ground and the Tea Party movement, there’s a desire for a return back to first principles.”
First principles? Does Dannenfelser and her friends read legitimate books about the Constitution? The Constitution legalized slavery even though the nation’s birth was triggered by the founders’ hunger for freedom. Delegates signed the Constitution because the Southern delegates demanded the continuation of slavery. It was the price for enacting the Constitution.
Does Dannenfelser miss slavery? As for “first principles,” whose first principles? The delegates fervently clashed over proportionate representation in Congress.
Except for term limits, Perry and friends present some befuddling ideas. He suggested that Congress should be authorized to override Supreme Court decisions by a two-thirds vote. Newt Gingrich told the Values Voter Summit in October that “judicial supremacy is factually wrong, it is morally wrong and it is an affront to the American system of self-government.”
As the Times piece notes, Congress may just have the authority to limit cases. However, this means that two adjoining sections of the Constitution contradict one another. Section 1 of Article III states: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Section 2: The court “shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
How do we set limits? If limits are set, how does the court determine when those limits apply to a case? How else can a citizen seek justice?
Gingrich and Rick Santorum, a senator from Pennsylvania for 12 years, share the goal of eliminating or disrupting the operations of the Court of Appeals of the Ninth Circuit, which hears cases from federal district courts in nine Western states. “That court is rogue,” said Santorum. “It’s a pox on the western part of our country.”
There are many Pennsylvanians who thought of Santorum, from the Pittsburgh area, as “a pox on the western part of our” state.
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