With Justice Kennedy’s retirement and probable replacement with a new Justice appointed by President Trump, Republican Presidents will have appointed five of the nine Supreme Court Justices. This despite the fact that Democratic candidates have won the popular vote in six of the last seven Presidential elections. That apparent disparity between the allocation of judicial power and the democratic will of most Americans poses a potential challenge to the legitimacy of the judiciary. That has in turn prompted recent calls for Democrats to add seats to the Supreme Court when they return to power. This Essay examines the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory. It offers the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The present constitutional moment provides a unique opening to solve the problem permanently through the perennial reform proposal: judicial term limits with regularized appointments.
Judicial Selection, by Stephen Ware, a law professor at KU, in Lawrence, Kansas.
Monday, August 6, 2018
Term Limits on Federal Judges?
Matthew Seligman, Visiting Professor at Cardozo School of Law, has posted Constitutional Politics, Court Packing, and Judicial Appointments Reform
The Abstract states in part:
With Justice Kennedy’s retirement and probable replacement with a new Justice appointed by President Trump, Republican Presidents will have appointed five of the nine Supreme Court Justices. This despite the fact that Democratic candidates have won the popular vote in six of the last seven Presidential elections. That apparent disparity between the allocation of judicial power and the democratic will of most Americans poses a potential challenge to the legitimacy of the judiciary. That has in turn prompted recent calls for Democrats to add seats to the Supreme Court when they return to power. This Essay examines the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory. It offers the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The present constitutional moment provides a unique opening to solve the problem permanently through the perennial reform proposal: judicial term limits with regularized appointments.
With Justice Kennedy’s retirement and probable replacement with a new Justice appointed by President Trump, Republican Presidents will have appointed five of the nine Supreme Court Justices. This despite the fact that Democratic candidates have won the popular vote in six of the last seven Presidential elections. That apparent disparity between the allocation of judicial power and the democratic will of most Americans poses a potential challenge to the legitimacy of the judiciary. That has in turn prompted recent calls for Democrats to add seats to the Supreme Court when they return to power. This Essay examines the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory. It offers the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The present constitutional moment provides a unique opening to solve the problem permanently through the perennial reform proposal: judicial term limits with regularized appointments.
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