Judicial Retention

[Brian Howell]

In the wake of SCOTUS' profound judicial activism of the past few days—at least as so assessed by several of the GOP presidential candidates—or, as Ted Cruz described it, "judicial tyranny." As a consequence, Cruz has proposed a constitutional amendment providing for periodic retention elections for the justices, much as we have here in California. 

 

Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy...

 

Today, the remedy of impeachment—the only one provided under our Constitution to cure judicial tyranny—is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy...

 

I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.

http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment

Many states, including California, Wisconsin, and Texas, hold quadrennial retention elections for jurists at all levels. (Kate just served on an Oakland Superior Court jury under a judge, who struck Kate as being very competent, who is up for reelection.) Eight states also currently provide for recall election: Arizona, California, Colorado, Minnesota, Nevada, North Dakota, Oregon, and Wisconsin (http://www.judicialselection.us/judicial_selection/methods/removal_of_judges.cfm?state). 

In 1987, California Chief Justice Rose Bird, along with associate justices Cruz Reynoso and Joseph Grodin, were voted out of office primarily because of their opposition to the death penalty: https://en.wikipedia.org/wiki/Rose_Bird#Reconfirmation_loss. 

Not that I think that such an amendment as Cruz proposes would ever come to pass, either in the Legislature or by a 2/3rd majority of the states, and I believe Cruz knows that. To me his actions are simply posturing and pandering to conservative rage over SCOTUS' recent decisions. But this issue invites me to ask a couple of broader questions:

1. Are retention elections (for judges or justices at any level) a good idea?
2. Are life appointments (for judges or justices at any level)  a good idea?

I have my opinions, but I'll wait to state them in the hopes that one of you will take the lead.

[Scott Hotes]

I have serious concerns about what removing life-time appointments would do to tie justices to the politicians

and political forces that got them there.  The fact that progressives have a friend in Kennedy, a Reagan appointment,

is a testament to how justices can and often do have or develop an independent voice.  FWIW, this is not a new

problem, and the reaction from Cruz, while laughable, is not new.  Consider Roosevelt's attempt to work around a

court not so friendly to his welfare state ambitions:

http://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/?no-ist=&page=2

Three days later, on February 5, 1937, Roosevelt shocked Congress, his closest advisers and the country by unleashing a thunderbolt. He asked Congress to empower him to appoint an additional justice for any member of the court over age 70 who did not retire. He sought to name as many as six additional Supreme Court justices, as well as up to 44 judges to the lower federal courts. He justified his request not by contending that the court’s majority was reactionary, but by maintaining that a shortage of judges had resulted in delays to litigants because federal court dockets had become overburdened.

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[jack saunders]

I agree with Scott.  One wing of the government that you can't practically "campaign" for in any meaningful way.  Yes, both parties pay a sort of flustered and threatened "due diligence" at confirmation times, there is no way to time these changes to any opportunistic movement.  For the most part, SCOTUS is a given -- a panel of 9 with generally 3 cranky eccentrics and 6 aging Rotarians.   You could do worse.

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From: Scott Hotes <sah...@gmail.com>
To: Brian Howell <bdho...@gmail.com>
Cc: Ipse Dixit <Ipse-...@googlegroups.com>
Sent: Tuesday, June 30, 2015 11:06 AM
Subject: Re: [Ipse Dixit] Judicial Retention

To view this discussion on the web visit https://groups.google.com/d/msgid/Ipse-dixit/CAC7%2BDACE2pp7RQfpbZzDycBmCyX79Awq-vn3XynZTFmhhDLTvw%40mail.gmail.com.

[Larry Rosenthal]

You mean, some judicial opinions are unpopular, especially to the losers?
Wow - shouldn't we alert the media?
xo,   LR.
PS Would someone please look up countermajoritarian in the nearest dictionary and get back to me?
PPS Was that Senator Cruz I didn't hear crying judicial tyranny when Citizens United was handed down?

-- 
Larry A. Rosenthal, Program Director
Center on Civility & Democratic Engagement
Goldman School of Public Policy
UC Berkeley MC7320
Berkeley  CA  94720-7320
ph 1-510-642-2062
http://gspp.berkeley.edu/centers/ccde

[jack saunders]

Do you suppose that recent salient decisions may have opened fretful murmuring in the salons of the far right?  Could Brother Roberts be headed down the trail of Earl Warren?  Billboards in fly-over territory?  Leading ultimately to an embarrassing name within the Republican Party?   The poor devil.  I wouldn't wish that on anybody who had spent his adult life honorably working his way up the country club ladder.

 

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From: Larry Rosenthal <l...@berkeley.edu>
To: Ipse-...@googlegroups.com
Sent: Tuesday, June 30, 2015 1:00 PM

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[jack saunders]

IMO....elections for judges are inherently shabby affairs.  It's like electing the school principal.

 

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From: Brian Howell <bdho...@gmail.com>
To: Ipse-...@googlegroups.com
Sent: Tuesday, June 30, 2015 9:10 AM
Subject: [Ipse Dixit] Judicial Retention

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[Brian Howell]

I've long been against either regular elections or retention elections for judges. But what about recall elections? Aren't they of value? "Will of the people" and all that stuff. What about the stress a jurist would experience when so targeted? Stress which I imagine must impair the target's cognitive processes.

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[Jack Saunders]

No question about it.  When Rose Bird went down, every judge in the state was spooked....and jurisprudence swerved rightward.  How could it have been otherwise?  I didn't even know the woman, but the lynch mob atmosphere shook the living bejesus out of me.  That election was the civilized world's version of a North Korean execution.

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