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July 09, 2019

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Jeremy Telman

@Steve: They're not mutually exclusive, but I don't favor the reforms of the judiciary that you have recommended for reasons already given.

anon

Howard

Yes, it is true that in 2009 "a group of 33... headed by Duke University's Paul Carrington" recommended "four proposals for reform of the federal judiciary, and in particular, the Supreme Court. ... Not all of the participants supported all four proposals."

Similar arguments were made in 2005.

Why is this letter different? First, "The letter does not advocate any of the several plans that have lately been suggested." Second, it is just a polemic that rings all the bells that the haters want to hear while advocating really nothing at all other than "revisiting life tenure" on the SCOTUS, which is unrelated to the ills advanced by the letter.

This letter is, actually, just a seemingly inadvertent attack on the Senate -- IMHO, the Democrats in the Senate.

Anonprof

Anon,

In your zealous attempt to prove that all Democrats are monsters and responsible for all the ills of the world, you neglected to recall that Harriett Miers' nomination was derailed by Republicans. They sought a nominee with the type of conservative bona fides that would assure that the nominee would not drift left.

anon

Anonprof

Agreed. Democrats are unlikely to fault one of their own. JFK spoke about how Republicans love to follow. Let's just say that AOC stands out today because she is such an exception to the new rules.

I find much fault both parties, but, I try to do so on legitimate bases. Because on this site one rarely finds any criticism of a Democrat or a Democratic proposal (or, even more clearly, a proposal from "the Left"), it appears to be established that there is a bias on this site. That bias leads to some fairly slanted attacks and the sort of obvious effort to avoid many truths (e.g., there is at least an arguable case that the Dems are much more likely to create the nomination circuses to which the letter referred, yet most readers seem to understand the reference to be to "the era of Trump"). To this bias, and the sweeping under the rug of underlying truths that any such bias attempts to achieve, I object.

As for the "merits" of your comment, it is, as usual on this site, the sort of emotional lashing out (you start, "you're so bad, anon") that misstates or mischaracterizes or misleads in order to smear a commenter, not the comments.

Sure, republicans questioned the nomination. But, to say that was the "sole" reason the nomination was derailed is, well, sort of simplistic and untrue.

A few facts: Senate Judiciary Committee Chairman Arlen Specter and ranking Democrat Patrick Leahy joined in asking for more information from the nominee. Republican Senators Lindsey Graham and Sam Brownback began drafting a letter asking the President's office to turn over legal memoranda and briefs Miers had written for Bush, in order to elucidate her views on political matters. An unseemly s... storm, like we just saw, was brewing.

The fact is, however, that when Senator Charles Schumer (D-NY) predicted she would fail confirmation, Specter, the committee chairman, rejected the notion that Miers's nomination was shaky.

In any event, Democrats, of course, were as rabidly hateful about Bush as about Trump (and Reagan and Nixon and Romney and any other republican). Any defeat of a republican is even more celebrated by the Dems if some republican agreed with it: Goldwater told Nixon to resign, etc. Dems love it when Republicans throw Republicans under the bus.

So what? What does that prove?

The fact that that a republican nomination failed I'm sure is purely delightful for you, but your comment is just an attack without substance, and has nothing whatsoever to do with the topic of this thread or any comment by me above.

Dave Garrow

I only read comments by folks who use their actual names (& have long felt that all the various "anons" should be banned), but I was asked (twice) to sign the letter & declined to, even after significant revisions were made, because (1) I felt its tone excessively cast the Court as 'political' (& that was even *before* some of the unusual 5-4s we saw late in this past term), and (2) because as anyone familiar with the Carrington volume knows, while I have long (since my 2000 U. Chi. L.R. article, "Mental Decrepitude on the U. S. Supreme Court") supported a Con. Amend. imposing a mandatory retirement age (ideally 75), I also believe that Paul & Roger Cramton's 18-year-fixed-terms proposal would *further* the partisan politicization of high court nominations. In my view the #1 problem is overly elderly justices & the heightened risk that such justices will 'hand off' even more of their Article III powers to their excessive number of 20-something law clerks. Cf. my 2005 Legal Affairs article on HAB.

Howard Wasserman

Suzanna Sherry has a paper forthcoming in Texas arguing that term limits and regular appointments would produce potential wild partisan swings: https://courtslaw.jotwell.com/the-supreme-court-is-broke-the-question-is-how-to-fix-it-alternatives-to-term-limits/

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