As he continues the process of “considering” running for President, Mike Huckabee is rolling out some of the golden oldies of political bones to chew. Such was the case this week when he trotted out the time honored proposal of putting limits on the terms of Supreme Court justices.
Prospective presidential candidate Mike Huckabee called Saturday for the imposition of term limits on U.S. Supreme Court justices, saying that the nation’s founders never intended to create lifetime, irrevocable posts.
“Nobody should be in an unelected position for life,” the former Arkansas governor said in an interview, expanding upon remarks he made during an hourlong speech at the Nixon Presidential Library in Yorba Linda.
“If the president who appoints them can only serve eight years, the person they appoint should never serve 40. That has never made sense to me; it defies that sense of public service,” he said.
There were obviously arguments among the founders on this subject, but it’s a bit problematic to claim that they “never intended” the justices to have lifetime, irrevocable posts. First, the wording of Article III seems to lend itself to the idea.
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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Granted, given the way our language has evolved over the centuries there is room to debate precisely what that means or if a lifetime appointment is inferred, but Hamilton waxed a bit more poetic on the subject in Federalist 78.
The standard of good behavior for the continuance in office of the Judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of Government. In a monarchy, it is an excellent barrier to the despotism of the Prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any Government, to secure a steady, upright, and impartial administration of the laws.
Obviously it’s not entirely clear, though, as there have been other efforts in the past by members of both parties to curb the power of the court. Shortly after Barack Obama took office a diverse cast of Washington characters cooked up the Judicial Act of 2009 which suggested a number of structural changes to the court, including the possibility of what clearly look like term limits in one form or another. But even then it sounded like they were wrestling with the obvious “constitutional objections” which the proposal faced and looking for some side doors to get around them.
Almost everywhere high court judges are subject to term or age limits that prevent the risk of superannuation. Our proposal is not a term limit but a system of rotation to assure some regularity of change in the composition of the Court. If necessary to meet the constitutional objection, the allocation and assignment of duties when there are more than nine active Justices could be left for the Justices themselves to resolve by a rule of court. There is surely no constitutional objection that could be made to that scheme, but it would be more cumbersome than the one proposed.
I’ve yet to see such a proposal which is anywhere near ironclad, and I doubt any of these would pass muster. And that doesn’t even begin to address the fact that any such legislation, once enacted, would be immediately challenged and eventually need to receive the blessing of … the Supreme Court. I hate to sound this cynical yet again, but come on. Are they really going to approve a scheme like that?
No, I’m afraid that if people really want this sort of a change it’s going to take a Constitutional amendment or convention. But do you really want to change the system? Even if you are unhappy with the current makeup of the court it can always eventually get better. Or worse. You just never know, do you? But it’s hard to argue that Hamilton and his peers were on the right track when they worried over justices who were so concerned for their employment prospects that they felt pressure to bend to the will of the public or the media every time a controversial decision came down the pike. The system is far from perfect, but I’m sure it could get even worse if we begin tinkering with it on a fundamental level.