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Reforming the Halls of Justice

monikermoniker Registered User regular
edited April 2009 in Debate and/or Discourse
This tangent was starting to take up space and I thought it was kind of interesting, so I'mma make a thread. One that hopefully won't disappear off the first page within a day, like usual with my threads.
moniker wrote: »
Speaker wrote: »
moniker wrote: »
moniker wrote: »
I think that's a workable system. I was trying to decide if I wanted it to be an elected position and I tend to think it shouldn't be. While we're at it, let's change the Supreme Court to single 18 year terms.

The problem with that is you run the risk of political and philosophical orthodoxy due almost solely to blind luck in how elections turn out. Obama is going to be replacing 2, maybe 3 Associate Justices. He is going to be keeping the balance of the Court in doing so, and it's going to stay that way for a good bit with Bush's replacements sticking around for awhile. Scalia has at least 8 years left in him, and Thomas will likely outlast 3 Presidents if he wants. (He did not age well.) But what if that was reversed? Bush replaced Ginsburg and Stevens instead of Rehnquist and O'Connor, and Obama would be replacing the remaining liberal wing? If the VP wins the Presidency after a 2 term Presidency you have a brand new majority appointed by what is basically the same administration. And one that would last.

Yeah, I was just throwing out an idea, I hadn't thought about it too much. The problem with the Court as it is currently structured is that it promotes finding young ideologues instead of the best jurists. I find that troubling. Thomas in particular is a joke but gets to serve forever. Maybe shorter terms than that even with a possibility for re-appointment? Problem there is it might get too swingy based on elections, though I'm not entirely sure that's a bad thing.

I'd say longer terms would be more amenable since it would mean that a single administration can only appoint 1 or 2 Justices, barring illness or injury, rather than stacking half the Court. However this raises a different issue with regards to the Chief Justice. Is that a position that regularly gets appointed now, meaning that every 3, or 7, General Elections become that much more important? Do we change it out so that the Justices themselves elect the Chief ala PM's in parliamentary systems? &c.

Reforming SCOTUS like this opens a can of worms far different from trying to make DOJ more independent and technocratic.

I think a set term wouldn't be a bad idea. It should be long though. Like twenty or twenty five years.

To me it seems like the main problem is a SCOTUS judge gaming things by deciding when to step down.

I was thinking 27, since there are 9 of them; so you stagger it that every 3 years a new Associate. Every so often 1 President gets an extra appointment, but that beats the macabre system we have now. It still leaves the question of what to do about the Chief Justice, though. Having the Court pick among its own members seems like a potential solution, but it might lead to internal politics and drama that is more or less lacking under the current regime.

Also,
moniker wrote: »
AG appointments, approved by the Senate, are staggered so as to occur midway through a President's term, or it gets shifted so as to be a 6 year appointment (maximum of 3 terms). He cannot be fired or forced to resign. Basically make DOJ more apolitical and independent in more or less the same way that the Fed is a bit more apolitical and independent. It would take a few administrations in order to build up the credibility and technocratic approach like at the Fed or State Department, but after that it should work out pretty good.


How can we improve upon the existing models for SCOTUS and the Department of Justice to make it more apolitical and independent, promoting the meritocratic advancement of individuals and a little bit less partisan in the approach? Plus no more trawling for kids to fill Justice positions to try and beat the macabre system we have now.

moniker on

Posts

  • KageraKagera Imitating the worst people. Since 2004Registered User regular
    edited April 2009
    Robot Judges.

    No I'm not even kidding.

    Kagera on
    My neck, my back, my FUPA and my crack.
  • monikermoniker Registered User regular
    edited April 2009
    Kagera wrote: »
    Robot Judges.

    E95E239F3162561681E723.jpg:?:

    moniker on
  • werehippywerehippy Registered User regular
    edited April 2009
    And to pull over my tangent:
    moniker wrote: »
    werehippy wrote: »
    moniker wrote: »
    I was thinking 27, since there are 9 of them; so you stagger it that every 3 years a new Associate. Every so often 1 President gets an extra appointment, but that beats the macabre system we have now. It still leaves the question of what to do about the Chief Justice, though. Having the Court pick among its own members seems like a potential solution, but it might lead to internal politics and drama that is more or less lacking under the current regime.

    I personally never understood why the chief justice was appointed. Since it's supposed to be a group of equals, just make who ever happens to be the senior on the court hold the spot until they rotate out.

    That would mean that you get a new Chief every 3 years. Granted they don't have exceptional powers, but they do have a good bit of influence over what occurs during their reign. Would all of the accomplishments of the Warren Court have occurred if he was just an Associate for most of that time?

    *edit*
    You know, we should probably split this.

    Maybe I'm just not up on my Supreme Court mechanics, but does the Chief Justice have that much pull. My understanding was a majority of the justices had to agree to hear a case from all the cases submitted to the court, and that was the extent of the process.

    werehippy on
  • SpeakerSpeaker Registered User regular
    edited April 2009
    With Justice you'd need to make sure the AG couldn't be reappointed.

    Here in NH it seems as though bureaucrats that pass from one administration to another for decades end up commanding a problematic level of influence over politicians, simply because they know where the bodies are buried.

    I'd hate to see what a more independent AG with Herbert Hoover's cast of mind could do to presidents and congressmen.

    Speaker on
    Being walkers with the dawn and morning,
    Walkers with the sun and morning, we are not afraid of night,
    Nor days of gloom, nor darkness -
    Being walkers with the sun and morning.
  • monikermoniker Registered User regular
    edited April 2009
    werehippy wrote: »
    And to pull over my tangent:
    moniker wrote: »
    werehippy wrote: »
    moniker wrote: »
    I was thinking 27, since there are 9 of them; so you stagger it that every 3 years a new Associate. Every so often 1 President gets an extra appointment, but that beats the macabre system we have now. It still leaves the question of what to do about the Chief Justice, though. Having the Court pick among its own members seems like a potential solution, but it might lead to internal politics and drama that is more or less lacking under the current regime.

    I personally never understood why the chief justice was appointed. Since it's supposed to be a group of equals, just make who ever happens to be the senior on the court hold the spot until they rotate out.

    That would mean that you get a new Chief every 3 years. Granted they don't have exceptional powers, but they do have a good bit of influence over what occurs during their reign. Would all of the accomplishments of the Warren Court have occurred if he was just an Associate for most of that time?

    *edit*
    You know, we should probably split this.

    Maybe I'm just not up on my Supreme Court mechanics, but does the Chief Justice have that much pull. My understanding was a majority of the justices had to agree to hear a case from all the cases submitted to the court, and that was the extent of the process.

    He gets to decide who writes the majority opinion and a handful of other things. Plus he's the Chancellor of the Smithsonian Institutes. So you know he gets all kind of ass because of that. Just say the word and you've got yourself a tote bag.

    moniker on
  • KageraKagera Imitating the worst people. Since 2004Registered User regular
    edited April 2009
    moniker wrote: »
    Kagera wrote: »
    Robot Judges.

    E95E239F3162561681E723.jpg:?:

    More like:

    Computer_Judge.png

    Kagera on
    My neck, my back, my FUPA and my crack.
  • monikermoniker Registered User regular
    edited April 2009
    Speaker wrote: »
    With Justice you'd need to make sure the AG couldn't be reappointed.

    Here in NH it seems as though bureaucrats that pass from one administration to another for decades end up commanding a problematic level of influence over politicians, simply because they know where the bodies are buried.

    I'd hate to see what a more independent AG with Herbert Hoover's cast of mind could do to presidents and congressmen.

    Never really thought of that. I suppose a single 6 year appointment would limit that to some extent. Stagger it so that the assistant AG and half the Department changes over every 3 years instead of all at once. The primary issue is having the position be divorced from the political sphere as much as practicable. Build a tradition of promoting from within. Assistant AG's tend to get appointed for their skill and then go on and become AG rather than spending time in the wilderness when their party loses the election since they were more patronage than professional. That sort of thing. It works in the State Department for a lot of the lower tier positions already, and the Fed as well. So it isn't impossible.

    moniker on
  • PantsBPantsB Registered User regular
    edited April 2009
    The AG isn't a Constitutional position though. He's an officer or Minister appointed by the President on the advice and consent of the Senate. Changing this would be a fairly major change to the Constitution.
    The executive Power shall be vested in a President of the United States of America.
    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    Enforcing the law is one of the central, defining characteristics of executive power. Breaking up the system of checks and balances seems ill-advised when the problem is solvable without that problem. Congress has the independent power to investigate. The fact that the current Democratic Leadership was unwilling to investigate the DoJ does not mean the system is broken.

    As for the SCOTUS, I don't see the advantage of requiring seats remain empty to limit the power of a Presidency. Especially since almost every Presidency has appointed more than 1-2 Justices. No elected President who didn't die in his first term has nominated fewer than 2 Justices since Buchanan.

    You can't get politics out of government. Its what it is.
    You can't keep politicians away from governance. Its what the good ones do.
    You can keep abuse of power from the exercise of power(as much as you can stop any crime), but only through checks and balances and I think most of the proposals above harm that more than help it.

    PantsB on
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    QEDMF xbl: PantsB G+
  • monikermoniker Registered User regular
    edited April 2009
    PantsB wrote: »
    The AG isn't a Constitutional position though. He's an officer or Minister appointed by the President on the advice and consent of the Senate. Changing this would be a fairly major change to the Constitution.

    :|
    That wouldn't be changed.

    moniker on
  • PantsBPantsB Registered User regular
    edited April 2009
    moniker wrote: »
    PantsB wrote: »
    The AG isn't a Constitutional position though. He's an officer or Minister appointed by the President on the advice and consent of the Senate. Changing this would be a fairly major change to the Constitution.

    :|
    That wouldn't be changed.

    If you make it so a President can't fire his Ministers it does. They tried that with Andrew Johnson and the law was ruled Unconstitutional in 1926 by the SCOTUS in Myers v US (on a different matter obviously). Cabinet members serve at the pleasure of the President. They have to follow the law, but who does it is chosen by the President and can't exist as an unelected coequal to the President even in a partial era

    PantsB on
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  • Witch_Hunter_84Witch_Hunter_84 Registered User regular
    edited April 2009
    I would whole heartedly embrace a change that takes the appointment of judges away from politicians and is conducted entirely by the legal community. It just seems like the Judicial branch should be more speprate than it is at this point in our society.

    Witch_Hunter_84 on
    If you can't beat them, arrange to have them beaten in your presence.
  • monikermoniker Registered User regular
    edited April 2009
    PantsB wrote: »
    moniker wrote: »
    PantsB wrote: »
    The AG isn't a Constitutional position though. He's an officer or Minister appointed by the President on the advice and consent of the Senate. Changing this would be a fairly major change to the Constitution.

    :|
    That wouldn't be changed.

    If you make it so a President can't fire his Ministers it does. They tried that with Andrew Johnson and the law was ruled Unconstitutional in 1926 by the SCOTUS in Myers v US (on a different matter obviously). Cabinet members serve at the pleasure of the President. They have to follow the law, but who does it is chosen by the President and can't exist as an unelected coequal to the President even in a partial era

    So there's no way to prevent another Saturday Night Massacre without a Constitutional Amendment?

    moniker on
  • PantsBPantsB Registered User regular
    edited April 2009
    moniker wrote: »
    PantsB wrote: »
    moniker wrote: »
    PantsB wrote: »
    The AG isn't a Constitutional position though. He's an officer or Minister appointed by the President on the advice and consent of the Senate. Changing this would be a fairly major change to the Constitution.

    :|
    That wouldn't be changed.

    If you make it so a President can't fire his Ministers it does. They tried that with Andrew Johnson and the law was ruled Unconstitutional in 1926 by the SCOTUS in Myers v US (on a different matter obviously). Cabinet members serve at the pleasure of the President. They have to follow the law, but who does it is chosen by the President and can't exist as an unelected coequal to the President even in a partial era

    So there's no way to prevent another Saturday Night Massacre without a Constitutional Amendment?

    For specific matters, such as investigating the WH itself, you can have an Independent Counsel (Morrison v. Olson) but that office's powers have to be pretty narrow before it starts to take executive power away from the President (and thus become Unconstitutional). The President actually has more power to fire say the AG than he does a guy who works at a random desk in the DoJ because of this clause
    the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
    So Cabinet members/heads of Departments serve at the pleasure of the President but that doesn't necessarily go all the way down to the janitor. Its just tough to argue that the Attorney General is an "inferior" office, since he reports only to the POTUS in the Executive Branch.

    The way to prevent such abuses of power is largely to punish those abuses of power, with impeachment for instance. Checks and balances don't magically eliminate all abuses any more than law prevents antisocial actions.

    PantsB on
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