In light of the recent rulings by the Supreme Court here are a few questions I would like to ask that have come up on other topics. There has been some writing on term limits for judges.



The other question I would like to ask is about a check against the Supreme Court. One idea is a 2/3rd vote by Congress to override a Supreme Court decision. The founders never intended to give the judicial branch the last word.

Should there be term limits for Judges?

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

Should there be term limits for Judges?
In short - no. As much as I would love to see Stevens gone, the Constitution is not written that way which leads us to...

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?
Again no. A 2/3 majority of Congress could override a Supreme Court decision today by writting a law that is clearly in opposition to it.

Should there be term limits for Judges?

That sounds kind of interesting. It would achieve a more rapid turn over, but I don't think this ultimately resolves the problem we have today with the extreme politicization of the judiciary. We still have the problem of judges-- who, once appointed, can read the Constitution however they like.

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

I do like this idea. It provides a democratic check on the decisions coming down from the Court. If we cannot insure that the Justices will act like judges and interpret the Constitution instead of amend it, this may be the only viable solution.





JLMA-- this is not true. If Congress were to do this-- the Supremes would have only to overturn that law as "unconstitutional". We are in a terrible situation right now with the Court. They have taken more and more power and now we are stuck with a judicial aristocracy in this country.

The only problem with that scenario is that the Congress would have to amend the Constitution every time it disagreed with the court. If the Congress amended the Constitution to allow a 2/3rds vote to override a court decision the American people would have representative option in overturning bad decisions.

For example, the eminent domain decision Friday is bad for just about everyone. There should not be a constitutional amendment to overturn it, but it would nice if the public outcry allowed the Congress (if 2/3rds agreed) to overturn the ruling.

Should there be term limits for Judges?
Absolutely, there is nothing in the Constitution that sets the term of Federal Judges so Congress is free to write the rules anyway they want. The Constitution provides for a Federal court system with a Supreme Court but no other details

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?
Absolutely not, this would be one of the worst ideas. To circumvent the most important part of the Constitutional amendment process would ultimately destroy the very thing this amendment is suppose to protect.

The ultimate arbitrator for the constitution should be the elected representatives of the people (Congress). Jefferson put in nicely.



I do not want to get into "judicial review" because that's another debate for another day. However, there should be a check for this power. The court rules on far too many cases to create new amendments for each case. Getting 2/3rds of Congress to overturn a ruling would be very difficult, so it is not likely it would create a free for all. It would be an important step in curtailing some of the power of the judiciary.

No, the judiciary should be, and was created to be a stabalizing branch. Term limites would shake things up too much.

God no. This just gives one branch of government almost ABSOLUTE power, that would be a horrible idea.

Justice is not democratic. To repeat the old saying, "What's just is not always popular and what is popular is not always just." Turning judicial powers over to the legislator does nothing but make justice a mobocracy.

CP

Should there be term limits for Judges?

No. Exactly what problem would be solved by this? Appointments are becoming political enough as it is....having them more frequently would just worsen that situation. Also, what a clear definition of just exactly what the problem is with the current system, I don't think we should be persuing any remedies at all. How can you judge the remedy without knowing what the problem is? This strikes me as a knee jerk reaction to the current and projected makeup of the court.

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

Doesn't Congress already have this power, and with only a simple majority? All Congress needs to do is amend the law on whatever ruling the court made. Given that, what's the purpose of this? Again, what is the problem being addressed here? If courts are becoming too powerful, there are legislative means of addressing this, which is how the system is supposed to work. Unless it can be shown conclusively that this isn't working, there's no reason to even start discussing a solution. Even if that were done, it would take a lot of convincing for me to see that Congress is the solution.

Should there be term limits for Judges?

A knee jerk reaction would say "yes"- but a more thought out response makes me say "no"- as much as I despise Scalia and Renqhist, and think they are the worst of the religious judicial activists, I would fear any more power to the senate as well. I think the founding fathers had the right idea here- it really does, hopefully, keep us from a tyranny of the majority, though barely it seems

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

Every time a question like this comes up- and these days it is mostly conservatives, and at one time it was mostly liberals- you should ask yourself "okay, right now the guys I like are in power- but someday, that may not be true, do I want to give those dirty_____ 's more power?"

I think, in current context, this keeps getting lost in the rhetoric- and to this day, is why I am so disdainful of the current right wingers- they don't seem (as a media entity, not a blanket statement of all conservatives, I am thinking conservative pundits that put forward different balance of power issues) to think " I wish GW had this power- but what if Clinton had this power?" - there is a cyclical nature of american politics, one time one group will have the upper hand, the next time, the other group will have the upper hand. The liberals had power for basically 40 years, ending in 1980. They had appointed some of the greatest judiciary giants this country has ever had- but those guys are dead now - and the new guys are in. In 20 years, or maybe even sooner if the right wing keeps up thier mania, there will be another shift in power, and the guys today will be dead, and new guys will be appointed. If the current right wing judiciary does something TOO nasty, eventually there will be political will to change it somehow- whether it be through amendment or law- and the cycle will continue. I have great hope for those after the baby boomer generation - they are more libertarian than any generation since the liberals of the 40s, and it makes me proud everytime I am on campus to hear thier critisism of BOTH philosophies, and the extreme of both schools of thought may go away because of the impact on this generation- I am willing to wait it out until my generation (generation X) comes into power and sweeps out those darn spoiled baby boomers LOL

Hey! Stay off my lawn ya danged kid, and bring me my senior coffee!

Seriously though, I think you're right about the knee jerk reaction to change things that seem to benefit the party out of power, because the party in power thinks that they should get their way in everything.

It's arrogant, it's petty, and it makes the congress look like a bunch of 12 year olds in Middle School. They're ready to strike out at their opponents without any thought to the eventual consequences, once they are removed from power. Because not one of them ever, in their hubris, thinks that they will lose that power and have the tables turned.

So, I agree, let's not make it easier for them to play these games. There is no need to change the current system. It's worked well for over 200 years.

No, Congress does not already have the power in all instances. If the Court overturns a law as unconstitutional-- what is Congress supposed to do? Re-enact it? Or let's say Congress modifies it. The Supremes can overturn it. Where is this power that Congress has already with a simple majority? For example, what can Congress do to change the result in the 10 commandments case in Kentucky? Perhaps in some instances, there may be a legislative solution where the Court has held that the Constitution does not protect sufficiently as in the eminent domain case. But in that case there may be a jurisidictional problem, i.e. does a local exercise of eminent domain affect interstate commerce?

Should there be term limits for Judges?
No I do not have a problem with our judiciary system. I expect it will be left leaners making this argument in another fifteen years.



Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

No the amendment process is sufficient for me.

I do not see a tyranny of the judiciary out there. I think most of the abuses are being created by the executive branch, and I am all for leaving whatever powers out there there are to counter our new and improved imperial presidency.

Eeyore-- the Congress is well equipped to counter the executive branch and in a democratic fashion. They can override any veto he exercises and they don't have to pass any legislation that furthers any of his plans. But where is the check on the judiciary? With life time tenures, there is none. The only check on the judiciary is the amendment process, which is almost insurmountable.

That is fine with me. The judiciary as I pointed out above is not my hobby horse to ride. I think it has a strong and stable history. The public balked when Jefferson tried to gain complete party rule through the impeachment process and it balked when FDR tried to do the same with his court-packing scheme.

There are 27 amendments on the books. When things are needed they eventually get amended. I just don't see what all the hue and cry is about the out of control judiciary right now.

The checks on the judiciary are plenty. At the SCOTUS level presidential appointments can change the bent of the court. Most judges are conscientious and actually base their rulings on laws made by the legislative branch and the Constitution written by the founding fathers.

Congress makes the laws, the courts adjudicate them. That's how it works. If Congress deems the Court isn't adjudicating something to their desire, they have the ability to change/modify the law. If that gets struck down as unConstitutional, then there are means for changing the Constitution. The point is the process for remedying any perceived wrongs is already built into the system. Nothing new needs to be added. I can't think of any cirumstance whatsoever that could arise wherein this process won't work. Can you?



The first check on the judiciary is the fact that it is Congress, not they, who write the laws, and Congress has the power to change them as they see fit. The last check is the amendment process, which is very specifically made to be difficult, as it is a very drastic step, not to be taken lightly.

I'm still not sure what the problem being solved here is, or how giving Congress, of all places, more power does anything to solve it. Keep in mind that being an incumbent in Congress is a fairly insurmoutable obstacle itself, and that Congress already has the power to make the laws. Do we really want to let them adjudicate them, as well?

Again Haleyanne who said democratic justice is a good thing? The judiciary is inherently undemocratic for a reason, it's supposed to be impartial and decide what's just, politicians in DC aren't the people we've put in charge to check themselves [and for good reason]. Just because the super majority of Congress agrees on something [cough, Patriot Act, cough] doesn't mean that it is just or Constitutional.

CP

1. I think that term limits for judges is a good idea. A lifetime appointment was designed to take away day-to-day political pressure from the judge's decision making process. However, when the constitution was designed, the life expectancy of a person was less than it is today. This is the same issue that social security is wrestling with. The assumptions that went into the model are no longer valid. Therefore, I believe a practical limit of 16 years should be enacted. That is 4 presidential terms. That sort of limit would take day-to-day pressures out of the equation (as designed) but prevent justices from sitting on the court for 30+ years like a fungus infection that can't be eradicated (Renquist 33 years, Stevens 29 years).

Judicial term limits

2. The constitution put the legislative branch ultimately in charge of the judiciary. The courts were never designed as the highest power and the last word. Yet, they have grasped power away from the legislative (and executive) branches and both created and destroyed legislation on dubious grounds (mainly political and social engineering justifications). I think that given the co-equal design, both 2/3 of the Senate AND the president would be required to sign off on the override. 2/3'rds trumps 1/3, not the other way around.

I have no problem with the Supremes reigning for life, we have a bad enough situation as it is with some considering the judicial system gone awry.

We can vote in legislators upon mob mentality and even some justices but not all.

Thats the way it should be. I feel like conservatives want to run the entire show, and sorry, thats not the way the system was set up to work for very good reasons.

I may not be happy with evey ruling, but Im not going to give into a revolving door scheme of the Supreme court based on current trends.

It may not be perfect but it is the least part of our 3 body politic corrupted by term limits, unlike the dog-eat dog scoundrels whom we vote for who waste tax dollars and continually run us into the ground.

I dont even understand what conservatives are complaining about? Didnt they uphold anti-gay marriage, anti-marijuana, pro- religious icons on public property and corporate rights to overtake slums? What IS the problem? What do you want that has not been afforded to you NOW? Just take take take, no amount of regressive thought will ever do.

Conserv Pat wrote:



The Patriot Act may not be just or constitutional-- but we ALL have the ability to get it repealed or modified through the normal democratic process.

And I agree, the judiciary is supposed to be impartial, and interpret the Constitution according to, well, what the Constitution actually says. A perfect example of an area of Constitutional law gone awry is in the 10 commandments case. What guiding principles have emerged from that case other than a new gloss on what the judges have been saying over the past few decades? Read Scalia's dissent in this case, it hits the nail on the head.



If you look at the issue this way Artemise, you miss the point entirely. It is not about the substance of the decisions-- it is about whether they are rooted in our Constitution. And they are most assuredly not rooted in the Constitution. The result is that we have ceded absolute control to five ivy league attorneys. The whole situation disgusts me. Read the link posted in the original post in this thread. It makes a good case for limiting the terms of these justices. Did you know that Justice Douglas stayed on the Court even after a debilitating stroke which rendered him almost incompetent? The Justices had an agreement to nullify any vote by him that was a deciding vote because they knew he was not competent as a justice. The situation has only gotten worse. The Court has become so politicized that the nomination process itself will be a war of gothic proportions this summer when Rehnquist steps down. And O'Connor may step down soon as well. Can you imagine the "dog eat dog" fight we'll have over her replacement? Sorry, but that is not how it was meant to be. I am convinced that liberals turn a blind eye to the abuses that are occurring in our Supreme Court jurisprudence because they like the results. And that is inexcusable.

Hobbes wrote:



Can I think of a situation where this "solution" will not work? Pretty much every decision that has come down this term can only be solved via the amendment process. That in and of itself is the problem. The problem with your view, Hobbes, is that you accept that five justices have absolute power to say what the constitution means with no requirement that the interpretation be linked to the text of the constitution itself. The lack of principled criteria (based in the text of the Cosntitution) in their jurisprudence is the problem here. The solution of term limits attempts to address this problem on the other end, i.e. once a decision has been made. I am certainly open to suggestions as to how to require them to adhere to the Constitution in a more principled fashion, but unfortunately, I am fresh out of ideas on this point. Do you have any suggestions? Or, is it that you fully accept the decrees from the Supremes as to what our Constitution says where they are based solely on the fact that the 5 justices say so?

From Scalia's dissent in the Mcreary case (10 commandments):

Yes, those mean old liberals are keeping us from a religious theocracy- how dare they!

I think the dog eat dog procces may actualy be good for the moderation of the candidate- if GW had a brain, he would pick a judge that congress would sail through without controversy- it would be easy- it is called compromise- you know Haleyanne- something the founding fathers REALLY wanted- not a totalitarian state based on the neo-con "values".

I think at this point- the liberals are being FAR more far sighted than the conseratives- realizing that the current demagoguery we have now will pass too some day, and they will die, no one lives forever, and allowing one ideology total power is not a good idea.

You know, the conservatives are really nearly destroying liberty in this country, and I am hoping as the baby boomers die off and retire, and as things get worse through the mistakes the conservatives are making today (and they are getting worse nearly daily) power will change- and who knows, it may go VERY liberal- and I will be fighting them and hating some of thier stupid extreme ideology then, and guess what? We will have a conservative court to keep them in check, and I will like that too

A liberal court is the perfect check for a conservative goverment, and vice versa, it keep the extremism turned back to the center.

You miss the point entirely. It has nothing to do with the substance of the decisions coming out of the Supreme Court. How can you not see this? How is a decision giving the federal government power to regulate pot grown in your window sill -- furthering liberal values. How is a decision allowing rich corporate interests free access to any individual's property-- furthering liberal values?

The issue has nothing to do with the results in these cases and everything to do with how the Court arrived at the decisions. But I suspect, that you tend to agree more than not with most of the decisions coming down in recent years and for that reason, refuse to closely examine what is really happening.

Hayleyanne, I do see the problems you point to. They're not new...the SC has screwed up in the past, and they'll do so again in the future. What I fail to see is how term limits will remedy this. The problem isn't the length of time the judges are in office, it's the fact that they're human. You could put them in there for a year, and they'd still have the opportunity to screw up. I am also uncomfortable giving Congress the right to overturn their decision, although requiring a 2/3 vote would indicate strong bipartisan support. There is already too much politicalization of court appointments and decisions....this would just make it worse, not better, IMHO.

I also don't think the cases you point to are as detrimental as you describe. Regarding the Kentucky decision, the court is walking the line between acknowledging the history religion plays in our judicial system, and advocating the same. The Kentucky case was a grey area, where opinions either way had reasonable justification. As to the eminent domain case, while I abhor the decision, the real principle was given up some time ago, when the definition of 'public use' was extended to more than just public facilities. The court's decision essentially just followed that lead. So, while an opportunity to redress the previous error was missed, the gates were already open when this court got the case, so I can't necessarily fault them on not following guiding principle, as the precedent would be part of that.

My point in mentioning the PATRIOT ACT was to give a famous and clear example of a democratically approved law that is unjust and unConstitutional. Opening up the Congress for review of judicial decisions does not mean that justice will prevail, and in many times will mean just the opposite.

CP

In reading this debate I have seen many people ask why term limits would be a good thing. I haven't really seen a definitive answer although I have seen many that touch on various things.



First of all let me address my disagreement with this statement. I don't believe that the justices would be a fungus infection for 30+ years. There are impeachment processes in place to remove those that are obviously unfit for duty, whether it be they are just plain nuts or whether they are physically/mentally unfit although I understand that the odds of this happening are not good.

The problem then, and the part that has not been addressed other than in passing, is that there have been times where a member of the court was unfit but refused to step down and impeachment does not take place. I have no problem with any justice, be they liberal. conservative or otherwise, who is able to do their job. However when our laws are being judged by unfit judges or by the judges employees who are doing the work while the boss is "under the weather" I do have a problem.

The term limits issue would resolve this to a certain degree by removing the judges after a certain amount of time. How long this would be I don't know as I haven't looked into it enough. Again this isn't meant to be a cure all. However Judge Renquist is obviously getting past the point where he can physically do his job let alone mentally. Age limits have also been suggested as a fix but while neither would be a panacea either would be a good start.

In regards to the 2nd question regarding the congressional override I say "absolutely not!" This is not a check or balance but a complete override. I came across an interesting comment from a book published in 1968.

In his autobiography "Eight Bells" Rear Admiral Daniel V. Gallery comments on how the Supreme Court "actually enacts new laws and amends the Constitution under the pretense of "interpreting" existing laws and words."

Apparently this is not a new concern or problem but one that has been going on for years. The question is how bad is this and what should be done about it? I personally like Admiral Gallery's solution (with a small proviso).



I don't know if I would go as far as requiring it to be unanimous, but a super majority would be nice. I do like his point that if the top jurists in the country can't agree then what makes it law?

Should there be term limits for Judges?

Maybe. I like the 18-year rotations, but I also don't see why the Supreme Court shouldn't have the same retirement age as everyone else-- once a Justice hits 65 (or whatever the retirement age is), Congress should be able to retire justices without a full-blown impeachment marring their legacy.

Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?

Yes, but the implementation is important-- I'm not sure that Congress should be able to vacate a unanimous decision of the court, or should have the capacity to write its own decisions. Instead, the override should take the form of supporting a dissenting (minority) opinion authored by at least one member of the Court-- that way, the outcome of the case remains authored by the Supreme Court, even if the Court's majority opinion is overruled by Congress. Sometimes there are multiple dissenting opinions, so Congress must select only one of them as the primary "override" opinion when attempting to overrule the Court.

Such an implementation is immune to accusations of trampling minority rights, because such overrides merely support opinions drafted by a minority of the Court. If the rights of the minority in Congress need to be protected and asserted, then certainly the rights of the minority on the Court needs such protections, too. But in the event of 9-0 decisions, there is no minority on the Court, and thus no means for Congress to override the decision.

Impeachment should also be a more viable option-- in fact, I believe there should be automatic impeachment proceedings each time the Court strikes down legislation, just to verify that there really was a real constitutional issue, rather than the vivid imagination of a constitutional issue. If the justices in the majority were found to have struck down legislation unnecessarily, they should be removed from office. Marbury v. Madison itself says almost as much...



A law which truly defies the Constitution is not law-- and a justice who falsely strikes down legislation should no longer remain a justice. No branch of government should be allowed to circumvent the amendment process-- to permit such cavalier defiance of the Constitution is nothing short of despotic tyranny bordering on treason.



The examples of unconstituional legislation discussed in Marbury are limited to direct contraditions of the obvious wording and intent of the Constitution, not some convoluted Rube Goldberg artifice like Roe v. Wade. Using the principles described in Marbury, only those laws which directly contradict the textual intent of the Constitution may be rightfully struck down by a court. Otherwise, the Court must leave the law in effect and make its ruling in a way that upholds both the lesser law and the Constitution, even if it would rather not.

The Court has no right under Marbury to tack extra amendments onto the Bill of Rights, no matter how noble its intentions. The Court can issue an opinion hinting that the People should amend the Constitution, but the Court must not amend the Constitution by fiat, finding rights to abortion, sodomy and gay marriage which are simply not there. If the People wanted the Bill of Rights to prevent any local government from regulating behavior that was illegal when the Constitution was adopted/amended, we would officially amend the Constitution to say something to that effect. Until then, the Court must uphold the law it is given, not what it wishes it had been given.

"Living constitution" activist judges (whether liberal, conservative or otherwise) are the greatest threats to the Constitution our nation has ever faced. They are the very definition of tyrannical despots whom the legislative branch must impeach in order to uphold their duty to protect and defend the Constitution. To deter the need for another round of mass impeachments in the future, we should pass an amendment allowing a 2/3 Congressional override of a Court's majority opinion in favor of its dissenting minority opinions.

Should there be term limits for Judges?



Should the Constitution be amended to allow a 2/3rds majority of Congress to override a Supreme Court decision?



Your whole post is nothing but a hodgepodge of conservative populist amendments to The Constitution of the United States. Your answers are non-solutiions to non-problems. They are designed for no other purpose than to grab power in the last branch of government conservatives do not control.

Impeachment? What “high crimes and misdemeanors” have any of the justices committed? None! This kind of thinking is using impeachment as a political tool rather than for its legitimate purpose.

My answer to both questions is a resounding “no!”

BTW: Before anyone attempts hide the real issue with a smoke screen, I don't think much of Franklin Roosevelt's attempt to pack the court in 1937.

Please be specific-- the only thing that might have been interpreted as conservatism is my pointing out the obvious absense of abortion, sodomy and gay marriage in the constitution. Perhaps you are looking at the world through leftward lenses, so everything that fails to support your left-wing extremism seems conservative to you.

If dedication to the Constitution is an exclusively conservative ideal these days, then liberalism has truly exited America stage left. I'm not so sure that all liberals have really abandoned the Constitution-- it is possible to be pro-abortion and still agree that Roe was an abuse of judicial power-- that until the Constitution is amended to guarantee a right to abortion, the issue must be decided by state and local governments.


Treason to the constitution-- violation of the oath to uphold it-- the same crimes I quoted Marbury about.

This may be correct, bur would you be kind enough to corroborate this statement with actual pronouncements by one or more of the founding fathers?



Jack22

The points I marked in red constitute quite a bit of “pointing out.”

Please read the National Journal article by Steven Taylor upon which nemov based his thread.



http://nationaljournal.com/taylor.htm

Do you still doubt where impetus for this type thing is coming from and what you, in turn, are supporting?



Like nemov you have not corroborated this statement. I doubt you will find many, if any, constitutional scholars in the nation’s universities or law schools who share awkward spin on Marbury v. Madison.

"Treason?" I think you've been getting a little too comfortable with an Ann Coulter book.

They represent nothing of the sort. Just because you're a left-winger and I disagree with you does not make me a right-winger. Sorry.


I am not supporting it-- did you actually read my post, or did you just read far enough to assume I was spewing conservatism? I am arguing against a judiciary that rules on its own ideology ("liberal, conservative or otherwise") rather than the Constitution. Please stop attributing other people's agendas and ideologies to me. Thanks.

Part of my point is that pretty soon, the conservatives are likely to start dictating law from the bench in the same way that the liberals have been doing it for more than 40 years now-- if you want to stop the insanity, balance the power of the judiciary before Bush nominates Ann Coulter, Laura Ingraham, Rush Limbaugh and Sean Hannity to the Supreme Court. Just because the Supreme Court has been overstepping its bounds for 40 years to dictate law with which you agree doesn't mean that they've gone about it the right way.

Of treason, BoF said...

No, and we won't find many justices on the Supreme Court willing to stick to the Constitution, either. I'm not willing to jump off the cliff just because all the liberals are doing it. Jusitice Marshall's spin on Judicial Review might be awkward, but it is nonetheless part of Marbury, and I did quote it.

If abusing one's power in order to subvert the US Constitution is not tantamount to treason, then what is it? If subversion of the Constitution is not a crime, then why is the left so furious about the Patriot Act? Come on BoF, surely you don't actively support the wholesale invention of law by the Supreme Court in defiance of the Constitution, do you?

If a conservative activist court were to instantly overturn the New Deal, Roe, the income tax, and a few dozen other bastions of liberalism on points of constitutionality that were not in the Constitution, would you be among the first to cry "impeachment," or would you say, "that's their prerogative-- they're the Supreme Court-- it's their right to dictate the constitution"?

Extraconstitutional activism by the Court subverts the Constitution whether it favors liberalism or conservatism. The fact that the voting public isn't ready to force a lot of liberal or conservative extremism down everyone else's throat isn't good enough reason to subvert democracy from the bench in order to force a tyrannical agenda on the rest of us, whether that agenda is left-wing or right-wing. For the past 40 years, it has been left-wing-- hence, the assumption that my opposition to such activism is motivated by right-wing extremism.

Supporting the Constitution and defending the amendment process from Congressional and judicial encroachment shouldn't be a very contentious issue, regardless of ideology. The fact that liberals resist it so stridently tends to lend credence to the idea that they like the fact that the Supreme Court has been usurping power for 40 years in order to dictate liberalism from the bench. Any honest liberal who opposes statism would at least concede that the Court's ideology was correct, but its methods were incorrect. Only a supporter of statist tyranny could rationalize that the Court's ends justify its means.

The time for non-statist liberals to help bring the judiciary into balance is before it gets populated with conservative activists that are the equal and opposite of the liberal activists currently there. When the Court becomes as conservative and activist as the Congress and most state legislatures, there will, sadly, be little motivation to restore balance and a respect for the Constitutional system.

The assumption that the Court will always rule in favor of liberalism, Constitution-be-danged, is a bad assumption in today's political climate. And for now, the idea that Bush will appoint more than one justice is also hardly a foregone conclusion. Whether or not Hillary will win in 2008 is not a sure bet. It seems such conditions would make all sides a little nervous about the long-term ideology that might be imposed by a Court unaccountable to the real Constitution in any practical way. By implementing a reasonable failsafe mechanism for reeling in a runaway court, we can at least know that a future court won't run as roughshod over the Constitution as it has in the past, regardless of which ideological tendency becomes dominant.

Jack22 this type rhetoric gets old fast. I did not call you a "right-winger" so please don't throw this "left-winger" crap at me.

If this type invective, failure to corroborate sources and accusing Supreme Court Justices of treason is the best you have to offer, it ain't much.

You do nothing to bolster your ceredibility.

Goodnight, sir.

Sorry. "Conservative Populist" was your invective epithet of choice:

For the record, I began working on an amendment to balance judicial power in 1993, when Democrats controlled all three branches of government. Were you railing against one-party-rule back then, or is one-party-rule fine so long as your party's the one?

My purpose, as I have stated frequently and as you have frequently ignored, is not to advance conservative judicial activism, but to end activism of all flavors in favor of upholding the actual law. I am well aware of the left's false accusation that every judicial philosophy except liberal activism is thinly-veiled conservative activism-- that originalism does not really exist. While I cannot deny that others may promote originalism in hopes of legislating social conservatism from the bench, such is certainly not the only motive for originalism-- respect for real legislation, the Constitution, and its amendment process is another, whether the left believes it or not.





The "indignant dodge." Clever. Punctuated by the indirection of credibility (making false allegations against motives, then when the motives are defended, attack credibility-- thus masking ones own credibility gap). Classic sparring, BoF, but not very original.

My quote from Marbury is all the corroboration I need. There is currently no practical limitation on the Court's power to dictate law, as credited to Marbury-- yet Marbury discusses overstepping its interpretive power in terms of a "crime"-- a crime that, if you are correct, must remain unenforced, thus placing Justices above the law in every respect, and destroying the rule of law in favor of the rule of judges.

Impeachment is not synonymous with removal-- impeachment is the process by which we determine if removal is necessary (for example, Clinton was impeached without being removed). When duly enacted legislation is struck down, an automatic impeachment should be the method by which Congress determines if the Court has overstepped its bounds-- if not, then the judges in question will keep their jobs.

I will say it again:
I state this on principle-- I could cite long lists of violations if pressed, but the principle is sound enough to stand on its own.

Until there is a 2/3 override in place that would allow the Court to make an occasional mistake without being impeached, impeachment remains the only means of holding judges accountable to the Constitution, and as such, those in Congress who have sworn an oath to defend the Constitution tend to defile that oath when they withhold impeachment of activist judges whom they believe to have demonstrably subverted the Constitution's amendment process or usurped the lawmaking power of Congress and the states by legislating from the bench. I fault this Republican Congress for its complicity in leaving activist judges in office.



"Goodnight, John-boy." --The Waltons

Jack22, spare me the condescending crap about the impeachment process. I taught government in a small North Central Texas town for three years at the beginning of my career and understand the mechanics of the impeachment/removal process.

The concept of life appointments of the federal judiciary is woven deeply within the fabric of American history. In the months immediately preceding adoption of the Declaration of Independence by the Continental Congress, John Adams began putting together some thoughts on government. In his Pulitzer Prize winning biography, John Adams David McCullough writes:



When The Constitution of the United States was written eleven years later, Adams’ ideas were incorporated:



Hamilton writing as Publius in Federalist Paper #78 supported lifetime judicial appointments:





Given the information above your claiming originalism is outlandish.



The Beatles sang, “all you need is love,” but like your statement this was an oversimplification. I have looked up all the references to Marbury v. Madison in the widely used textbook Constutional Law, 15th Edition, 2004 by Kathleen M. Sullivan and Gerald Gunther. There are references on pages 2, 3, 15, 22, 31, 32, 49, 424, 488 and 958. Nowhere do I find any reference to your interpretation of Marbury. Apparently the people who wrote “the book” don’t find your thinking significant.

In 1958, The U. S. Supreme Court, in a unanimous decision, Aaron v. Cooper (a case further interpreting Brown v. Board), went a step further and reinforced Marbury.



http://usinfo.state.gov/usa/infousa/facts/democrac/37.htm

The constitution also addresses impeachment and removal of federal judges.



http://www.infoplease.com/spot/impeach.html

During our more than two centuries of history, only two Supreme Court Justice have faced impeachment proceedings. John Pickering was removed in 1804 and Samuel Chase was acquitted in 1805.

http://www.infoplease.com/ipa/A0194049.html

Seemingly, Pickering’s removal was politically motivated. I have suggested the current rather weak grass roots movement for wholesale impeachment is based on similar motivation.



http://www.historywise.com/KoTrain/Courses...tic_Affairs.htm




Well not really. It would like to see if you can find a reputable constitutional scholar in a university or law school who supports your interpretation. I refer you to the forum’s Survival Guide:



http://www.americasdebate.com/?page=guide



Invective was not my intention. I have a friend I see at the coffee shop who describes himself as a “conservative populist.” We laugh about it. He has some views on the federal judiciary similar to yours. In fact, he is in favor of popular election of judges instead of presidential appointment. If it will make you happy, I’ll drop the word "conservative" and just say that what nemov has asked about is today's brand of “populism.” You know, the more I think about this, the more I think my position on judicial tenure is “conservative” while the reforms you suggest are “radical.”

One only has to do a Google search to find an abundance of articles on the subject:

http://www.google.com/search?hl=en&q=Chang...me+appointments



I see thirteen years of frustration in your past and an indefinite number in your future if you continue to pursue this project. For the record, I have always believed a strong two party system is in the interest of the nation. I was not “railing” against the courts in the years you mentioned, and I’m not doing so now. I don’t like particularly like Justice Scalia or Justice Thomas and I may not like the person Bush nominates to replace Justice O’Connor, but I’m not getting rabid about impeaching them.



This is cute and I liked The Waltons, particularly Walter Brennan, but it’s irrelevant to the discussion and otherwise without merit.

In summation, we are just going to have agree to disagree on whether the federal judges should have limited terms. I say “no”, you say “yes,” (hey, we almost have another Beatle song) but I think history is on my side. Nemov did not list impeachment and loose talk of treason as an option in his original questions, so, I’m not going to entertain this absurd proposition any further. I'll leave all the "treason" talk to you and Ann Coulter.