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Bill Straub: Bipartisan commission on Supreme Court should perhaps consider term limits


Now that Republicans have made hash out of the supposedly non-political U.S. Supreme Court with a series of underhanded maneuvers, along with the appointment of justices barely capable of representing themselves contesting a traffic ticket, President Biden has established a commission to consider changes in the nation’s highest tribunal.

“The commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” according to a White House statement, which attracted barely controlled hysteria from congressional Republicans.

Two issues among the many slated for consideration have drawn blood. One would deprive the justices of lifetime appointments while the second would expand the court beyond its current nine members.


The NKyTribune’s Washington columnist Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com

It’s the latter that has elicited howls from the right, well aware that the addition of new justices, whether it be four, six or pick a number out of the air, would jeopardize their 6-3 advantage on the solidly conservative court. Biden, who would make the nominations, has already indicated he hopes to direct the court in a more progressive direction and has all but vowed to appoint a African-American woman to the next open spot.

This does not sit well with the right-wing, especially with Senate Republican Leader Mitch McConnell, of Louisville, who has dedicated his political life to bringing ruin to the federal judiciary, including highest court in the land.

Biden made it clear during his successful presidential campaign that he opposes court expansion but felt obligated to ruminate over its status. That’s too much for Mitch and his boys in the Federalist Society to bear. They apparently prefer a majority of justices willing to consider depriving women of their right to an abortion, depriving African-Americans of their right to vote and depriving some members of the public of needed health care.

McConnell, not one for understatement when it comes to protecting his Supreme Court baby, called the entire process “insane” and characterized it as a “terrible idea.”

“This faux-academic study of a non-existent problem fits squarely within the liberals’ years-long campaign to politicize the court, intimidate the members and subvert its independence,” McConnell said.

Let’s be clear here that Addison Mitchell McConnell almost single-handedly created this situation. The indictment is a long one. His primary concern during his six- year tenure serving as the Republican leader when that party held the majority was to pack the judicial system – including the Supreme Court – with judges so far to the right that it would make Jesse Helms blanch. It was McConnell who suggested to erstwhile President Donald J. Trump that he make clear during his successful 2016 campaign who he would appoint to the bench, citing a list prepared by the right-wing Federalist Society.

McConnell infamously refused to consider, and maliciously declined to meet with, Merrick Garland, then-President Barack Obama’s choice to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. In the final weeks of Trump’s failed presidency, McConnell rushed through the nomination of now-Justice Amy Coney Barrett to replace the late Justice Ruth Bader Ginsberg, violating the phony baloney “rules” he created and then cited to undermine the Garland nomination.

And, last but not least, he changed Senate rules to prohibit any possibility of a filibuster against Trump’s high court nominations, meaning the future justices only had to receive 50 votes in the 100-member Senate rather than 60.

Yet here is Mitch McConnell insisting that a bipartisan commission established to consider Supreme Court reform is a “dangerous, antiquated idea.”

“Of course, this is just another example of the liberal preference for attacking norms and institutions, rather than working within them,” McConnell said.

Good lord in heaven – did he really say that? This is the man who spit on norms to steal two Supreme Court seats and then not only failed but refused to “work within them” by pulling a rules switcheroo.
This, folks, tell you all you need to know about Mitch McConnell and what an unbelievably ridiculous figure he has become.

Given all that, it’s painful to acknowledge that McConnell and his ilk, at least on the question of Supreme Court expansion, are on the right side, even if for all the wrong reasons. Nine is fine. It’s the right-wingers filling the seats who make it wrong, not the number.

There currently exists no decent rationale for expanding the size of the Supreme Court other than to address and correct McConnell’s corrupt overreaching. That’s not good enough. It’s akin to those on the right reacting with hostility toward every proposal emanating from the right just so they can “own the libs” – a silly means of retribution for no explicable reason.

Republicans and conservatives, especially McConnell, have proven themselves to be immoral and unethical on the issue of the composition of the Supreme Court. That doesn’t give Democrats and liberals carte blanche to walk down that same blighted path. Any effort at so-called court packing at this juncture would rightly be seen as a purely political exercise in regard to an institution that’s supposed to be above politics.
I know what you’re thinking – it’s unbelievably naïve to think the nation’s courts operate above politics and act strictly based on the law. After all it was Mr. Dooley who noted, “No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns.”

Positioning individuals on the bench is, at best, a semi-political process. But adding seats at this point would be a brazen move with no other basis but politics. There’s no other apparent reason to fool with it. Even if politics touches on the Supreme Court, the ideal is to offer the justices some protection from the practice. The composition will change over time and a new day will eventually arrive. Any expansion now will properly be viewed by the public as a purely political maneuver, which would naturally undermine faith in the institution itself.

Leave it and fight another day.

Now it’s totally possible the Biden commission will promote a good, sane and necessary reason to expand the Supreme Court other than to counter-balance the Trump conservative appointments. If so, reconsideration would be called for. But based on the available evidence, nine will do.

On the other hand, despite McConnell’s protestations that there’s nothing wrong with the court’s status, it’s time to consider term limits. You have justices on each side serving into their eighties. Justice John Paul Stevens was 90 when he finally retired.

That’s a bit much even for an old man like me. I won’t be writing here when I’m 90. I might not be anywhere when I’m 90. The idea of a lifetime appointment is to protect the justices from outside pressure and influences. A 15 or 20 year term likely would adequately address those understandable issues and open up the court to new ideas.
 


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4 Comments

  1. Marv Dunn says:

    I agree with Bill. We need both term limits and age limits for all federal judges. Lets suggest a 15 year term or age 75, whichever comes first. Don’t grandfather the existing courts in if possible. As for McConnell, I think his future rides solely on the 2022 elections. He always thinks ahead and that’s why he was so supportive of the new Kentucky law specifying Senator’s succession.

  2. George says:

    Hmmm you happen to support the idea of supreme court term limits, coincidentally at the same time that the court is majority conservative and at a time that it is the only thing that stands in the way of an all out liberal socialist government legislation. It MUST just be a coincidence, Bill.
    If you pass at the same time term limits for all of congress I’ll gladly get behind limits for the supreme court. And when I say limits for congress I mean you get 4 years in office, and then you’re barred from any politics of any kind the rest of your life.

  3. Jane Cochran says:

    Your columns always make me feel hopeful. Along with our dear Governor Beshear.
    Thank you.

  4. Richard says:

    This article is not very considerate of older Americans. If a man or woman has all of their faculties, even at a later age, why cant they serve? They can always be removed by impeachment if they have a severe impairment and refuse to retire. Did you vote for Joe B.? He seems to have lost a step, in more ways than one.

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