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Judicial Term Limits and Judicial Independence

[ 2 ] February 12, 2009 |

For one last go-round, I’ll respond to a couple of the creative attempts in comments to justify essentially indefensible life tenure for judges. Essentially, all of these arguments are “largely speculative effects that would be trivial even if they existed with no attempt to balance them against the very real and identifiable costs of life tenure.” First, there’s this:

Well, we should also consider that some Supreme Court justices with limited terms would have their eyes on political office after they left the bench.

Do you think, say, Brown v. Board of Education would have been a 9-0 vote if some of those justices were planning to run for the Senate somewhere down the line? Would it have even gone the way it did?

On the specific case of Brown, of course judicial term limits would have made no difference to the outcome. The one justice from the Deep South was perhaps the decision’s strongest supporter. Somehow, I doubt that Robert Jackson was pondering a run for political office from his deathbed, and of course since he was from New York political considerations would have made him less likely to dissent. Term limits would have forced Stanley Reed to leave a whole year earlier than he did — when he was 73. And what’s true specifically is true in general — to believe this is a relevant factor requires as many implausible assumptions piled on top of one another as the ticking time bomb scenario. You would need 1)enough justices to change a vote 2)considering a run for political office although they’re likely pushing or past 70, 3)and for whom political considerations all end up changing rather than reinforcing their vote. And then, of course, any justice who was concerned about political office can just resign anyway (Douglas certainly would have had FDR put him on the ticket, which was apparently considered), so it’s not like life tenure would cause such alleged effects to vanish. Let’s just say it’s a risk I’m willing to take.

Another argument:

In short, you can’t have fixed terms AND staggered terms AND be assured that those terms are long enough to provide the sort of long horizon that tends to ensure judicial independence. You have to pick two of three: 1) fixed terms; 2) staggered terms; 3) judicial independence.

Most of this false choice comes from the idea that a (rare in modern times) case in which a judge resigns or dies on office before 18 years represents some huge problem. Of course, it’s fairly easy to deal with –have a retired justice sit in, the historically common practice of leaving a seat vacant, temporary non-renewable appointments — and at any rate there can be no question that term limits produce a much less arbitrary distribution of appointments than life tenure, so this objection obviously doesn’t fly. The bigger problem is that the false choice assumes that liberal democracies that have fixed, staggered terms (which is to say, most of them) don’t have “judicial independence.” This is really silly. Part of the problem here, perhaps, is a failure to understand that judicial independence is a relative, rather than an absolute, concept. If such marginal effects could mean that we don’t have “judicial independence,” I hate to break this to you, but the United States doesn’t have it. Various aspects of the constitutional system — most notably the fact that courts rely on other actors to implement their decisions, and the ability of Congress to control federal jurisdiction and increase the size of courts — are far, far more of a problem to “judicial independence” than speculative, marginal effects cause by the fact that a few judges might want to start lucrative private sector careers instead of just retiring on their generous pensions at age 71.

Again, if anyone has actual evidence that courts in most other liberal democracies aren’t meaningfully independent in a way that American courts are, please point us to it. Otherwise, it’s pretty clear that the benefits of term limits outweigh the costs.


The lost art of manliness

[ 0 ] February 12, 2009 |

Egads. Loomis finds weirdness on the internet, probably while researching 19th century yogurt enemas.

At first glance, I thought the site — which is, I should add, non-yogurt-enema-related — was a parody. At second glance, I thought the site proved that Kim du Toit had come out of retirement. At third glance, I realized I am not a man because I can’t throw dynamite overhand punch.


[ 0 ] February 11, 2009 |

I have some thoughts about Ruth Bader Ginsburg’s Supreme Court tenure over at Comment Is Free.

Worst American Birthdays, vol. 47

[ 0 ] February 11, 2009 |

Let’s say it’s mid-August 2008. You’re a nationally unknown governor from a geographically large, demographically insignificant state. It’s true, of course, that you possess comically errant beliefs about science and the environment, and your reputation as a “maverick” has been oversold by half.

But you’re young and chipper, you’re overwhelmingly popular with your constituents, and you have a bright political horizon before you. In the very least, you’re a dead-lock for re-election as your weird state’s chief executive, and you might even be looking forward to an eventual move to the US Senate one day. Or perhaps you might even vault to the US House when your state’s only representative is eventually remanded to federal custody. Your reputation as a clean-government reformer has been dented somewhat by summertime allegations that you fired a state commissioner after pressuring him to fire someone you didn’t like. But you’ve pledged to cooperate with the investigation, and — let’s be honest — even if you’re judged to have abused your office, very few people are likely to hold any of this against you in 2010.

Then let’s say you receive a surprising offer to serve as the vice presidential running mate for a very old man with a history of health problems. You earn this opportunity in no small part because a group of pathetic, right wing men met you on holiday a year earlier and sprouted chubbies in their shorts. Fulfilling the role that traditionally suits the vice presidential nominee, you agree to be the campaign’s attack dog; though you lack the information to develop original broadsides against your opponents, you’re competent with a teleprompter and are capable of cracking wise about pit bulls and lipstick and such. You fib mightily about your record as governor; you struggle with your native tongue in media interviews; you complete a televised debate, using occasionally-complete sentences but treating facts and figures as if they’re foreign objects to be dislodged as quickly as possible from your throat. You wink and smile. Mooseburger, hockey, maverick — drill, baby, drill. And then, as your campaign slips farther behind in the polls, you resort to portraying the other party’s candidate as a consorter with terrorists and as a scary (cough, negro, cough) man with alien values and a loathing for the country he seeks to lead.

Let’s say you do all these things while refusing to cooperate with a legislative investigation at home. You allow your running mate to send a squadron of lawyers to manage the state’s executive branch in your absence. You allow them to describe a former commission head as a backstabbing “rogue” who deserved his professional head upon a platter; you allow them to misrepresent the nature of the investigation; you allow them to portray the legislature as a hive of Obama supporters. You issue a report clearing yourself of any wrongdoing. When the legislature releases its own report, you pretend that it clears you as well.

You lose the election. You are a laughing stock. You’ll probably be back in four years, and you’ll probably lose again. Meantime, you’ll earn at least $11 million from the labors of a ghostwriter.

But why sweat the little stuff? Today, on the third anniversary of the Great Quail Hunt, America wishes you a happy 45th birthday.

One of these things is not like the other

[ 0 ] February 11, 2009 |

Shorter WaPo:

Contrary to the presidents assertion, lots of his opponents want to do something about the economy. Ergo, Barack Obama’s rhetorical strategy for pushing the stimulus is so totally like the rhetorical strategy used by George W. Bush to push for ideas like the war in Iraq!!111ONE!!1EXCLAMATION POINT11!!

Jeebus. There are of course, folks out there who would literally do “nothing” in the face of economageddon. But the fact that single-note tax-cut zealots — which at last count would include 35 of the 41 Republicans in the Senate among many, many others — favor doing “something” doesn’t diminish the fact that their policy proposals would be next to useless if actually implemented. Moreover, rhetorical oversimplifications can’t very well mask the fact that Obama and the Congressional Democrats have already given away quite a bit to appease these people while avoiding proposals that (a) might actually work but that would (b) arouse Republicans into fits of incomprehensible red-baiting.

The problem with the Bush administration was that it developed a conga line of terrible, ideologically-inspired ideas and then implemented them, to the extent that they could, on the assumption that everything would work out for the best and that showers of candy and flowers would be their eventual reward (see, for example, “Iraq, the clusterfucking of”). The Bush administration never planned for the worst case scenarios and then, through a combination of inaction and intention, permitted them to transpire anyway. So far, the broad knock on Obama seems to be that he’s allowing terrible, ideologically-inspired ideas from his adversaries to limit — or completely remove from contention — policies that tow a strong weight of evidence suggesting that they’d actually have positive results. To a certain extent, that’s just the way things go. There’s no reason to be happy about it, but it’s the inevitable consequence of a political system that forces you to deal with crazy people.

But if folks in the Obama administration share their predecessors misplaced optimism, we’re in for a world of shit. It would be hyperbolic at this point to compare the Geithner plan to the abhorrently bad Defense Department planning for post-war Iraq, but I’m depressed by the fact that it’s the first comparison that shot to mind.

Point being, any rhetorical similarities between Obama and Bush are meaningless if the policy results are substantially different. And if, at the end of the day, we wind up in worst straits than we should be, the rhetorical similarities between Obama and Bush won’t help us understand how we got that way.

It’s True, But You Shouldn’t Say It

[ 0 ] February 11, 2009 |

I suppose Krugman says all that needs to be said in response to Will Marshall, but I can’t resist quoting the content — such as it is — of Marshall’s substantive critique:

In language that could qualify for a Pulitzer Prize in hyperbole, Krugman claimed that the dastardly centrists would kill hundreds of thousands of jobs and cut vital health care and food programs, while offering new a fat tax break to affluent homeowners.

On food stamps and aid to states, Krugman makes a fair point. But some of the education provisions are more questionable and the housing credit, properly targeted on first-time homebuyers, could help to halt the slide in housing prices. In general, Krugman’s outrage seems out of proportion to the actual differences between the House and Senate bills.

So, to summarize, of his four points Marshall concedes Krugman is right on two. On the housing subsidy, he engages in a classic “if things were different, they wouldn’t be the same” evasion; maybe a targeted home purchase subsidy would be good policy and maybe it wouldn’t, but since the actual provision supported by Senate wankers “centrists” isn’t actually targeted this is entirely beside the point. So his only actual disagreement consists of a vague assertion that “some” education provisions are “questionable,” which again even if we’re willing to take Marshall’s word for it isn’t actually responsive to Krugman’s claim that the Senate plan would kills hundreds of thousands of jobs and prioritizes a largely non-stimulative subsidy to rich home buyers over education spending. I believe this is what you call an “epic fail.”

But none of this changes the fact that Paul Krugman totally deserves a Nobel Prize for Teh Shrillness.

Why Tom Zarek Was Right

[ 0 ] February 11, 2009 |

The following is a Letter to the Editor from “Concerned Colonial Citizen”, regarding the prospects of a permanent alliance between the Colonial government and the rebel Cylon. It is titled “Why Tom Zarek Was Right”. The letter is spoileriffic.

I oppose permanent alliance with the Cylon, and believe that Vice President Zarek and Lieutenant Gaeta were correct to resist the Adama-Roslin military-political clique. Here is why:

1. We cannot trust the Cylon
Thus far, the Cylon have changed policy towards the Colonial government five times. The Cylon began the war by initiating a campaign of genocide against the colonials. They continued to pursue this campaign until, quite suddenly, the Cylon shifted to a policy of disengagement. This policy continued for about a year, until the Cylon undertook a policy which could be best described as benevolent despotism. Shortly after the failure of the despotism option, the Cylons resumed pursuit of genocide. After once again failing to accomplish genocide, the Cylon split between pro- and anti- genocide factions. More recently, the anti-genocide faction began throwing humans out the airlock of the base star, and training its weapons on the fleet.

What this demonstrates is that Cylon attitudes and goals are fickle; it is difficult to predict what the Cylon will pursue next. This is hardly unsurprising, given that the Cylon have an alien psychology and decision making process. It does, however, suggest that belief that we can “trust” the Cylon is the purest folly; the Cylon cannot even trust themselves. At some unforeseen future point, the Cylon we accept into our fleet may well decide to resume the process of genocide, or once again decide to pursue benevolent despotism. This represents an unacceptable risk, given the perilous situation of humanity.

2. The Cylon cannot trust us
Very recently, the Colonial government underwent a failed coup that very nearly toppled the political and military administration. The coup, which appeared widely popular in the fleet (25 of 35 civilian vessels obeyed the orders of the coup plotters, rather than that of the duly elected President) was based around opposition to permanent alliance with the Cylon. Several civilian ships have experienced anti-Cylon riots in response to efforts to retrofit their FTL systems. It should be painfully clear to all concerned, but especially the Cylon, that Colonial promises of “civil rights” are only as good as the Colonial administration that makes them, and that the long term survival of this administration is in deep question.

At first glance, this may seem to be only a problem for the Cylon; if they can’t fully trust us, so what? Deeper analysis reveals that any cooperative relationship is predicated upon mutual trust, and that if the Cylon fear Colonial treachery (as they should) they may pre-empt with their own. The missiles of the Cylon base star are a dagger aimed at the heart of humanity; if the Cylon ever begin to believe that the Colonial administration will not fulfill its guarantees, then those weapons may once again be aimed at Colonial ships. Moreover, it is near certain that the next Colonial election will be contested on the issue of Cylon citizenship. The victory of the pro-Cylon Roslin-Adama faction is hardly guaranteed, especially given the increasingly authoritarian nature of that faction, and its failure to deliver much-promised colonization on Earth. Alliance with the Cylon means that the election will be conducted under the shadow of a Base Star, with Cylon missiles ready to fire in the event of the “wrong” result. As D’Anna said, the Cylon can never be certain that the humans won’t seek revenge at some point; as such, the rebel Cylon must always retain a capacity for destroying the Colonial fleet.

3. The future contribution of the Cylon are in deep question
Short term collaboration with the rebel Cylon has paid some benefits. The rebel Cylon inadvertantly revealed the presence of remaining agents within the Colonial hierarchy, although distressingly these elements have yet to be purged. More importantly, the rebel Cylon contributed to destruction of the Cylon Resurrection Hub, dramatically reducing the military capacity of the hostile Cylon. Finally, collaboration with the Cylon led to the discovery of Earth, which was widely accepted as a Colonial goal in spite of the revelation of inhospitability to human life. However, the fruits of further collaboration are unclear.

On the military side, the rebel Cylon can offer us the services of a damaged base star, some intelligence on the hostile Cylon, and some technology improvements. While not utterly insignificant, these positives do not outweigh the risks of a permanent alliance. The Base Star in question has lost all of its skirmish fighters, which represent the main striking power of a Cylon capital ship. As it stands, the damaged warship is considerably less capable than Galactica (BSG-75). It does not, therefore, represent a transformation of Colonial military capacity, but rather an addition of limited value. The additional intelligence that the Cylon could provide would undoubtedly be helpful, but it must be remembered that the rebel Cylon were caught unawares by a hostile Cylon attack; allowing the Cylon to achieve complete operational and strategic surprise is something that we can manage without Cylon assistance. Finally, the technology improvements offered thus far would increase the jump capacity of the fleet. I submit that, while these improvements would be welcome, the survival of the fleet does not depend on an increase in its FTL capability, as existing capability has served the fleet well.

On the political side, the Cylon represent more of a liability than an asset. There is every reason to believe that the hostile Cylon hate the rebel Cylon more than they hate the Colonials, and thus that alliance with the rebels would preclude any future (less intrusive) peace agreement with the hostile Cylon. Indeed, the leader of the hostile Cylon was the strongest advocate for the policy of disengagement with the Colonials; the current “rebel” Cylon believed that intervention on New Caprica could “fix” the relationship between Colonial and Cylon. Humanity will not be secure until the completion either a comprehensive peace agreement exists with the entire Cylon community, or the complete destruction of that community. Permanent alliance and civil rights for the Cylon does not, as far as I can see, further either of those goals.

4. The Cylon are mass murderers
Four years ago, the Cylon massacred many billions of humans. They rounded up many of the surviving humans and created rape factories on an industrial scale. They pursued remaining survivors in an effort to complete the genocide. After a change in policy, they essentially enslaved the remnant of humanity under their “benevolent” despotism.

It was not fathers or grandfathers of the Cylon who committed these acts. These atrocities were not committed ages ago. These atrocities were not committed by rogue elements; there is no such thing as a Cylon civilian. The Cylons that propose, today, to become Colonial citizens were, just short time ago, planning and executing the almost complete annihilation of humanity. There is no conception of justice that can bear the introduction of these creatures into our society. The “Final Five” excepted, they are each and every one butchers; to excuse them their crimes would render the murders they carried out meaningless. It would destroy the fundamental tenets of our civilization. If we recognize that the rebel Cylon have civil rights, then they surely have civic responsibilities; as such, each and every one of them should fall under the authority of a war crimes tribunal, under accusation of genocide. Somehow, I suspect that these Cylon are not prepared for that degree of integration with Colonial society. If they cannot bear the responsibilities, then they do not deserve the rights.

The Cylon desire the protection of Colonial society. I, however, do not wish for the Cylon to be part of our political community. I do not wish to see them on our ships, or participate with them in our voting, or hear them in our Quorum. They are murderers, rapists, torturers, and enslavers, and they have no right to be part of our social and political life. The best that I can offer the Cylon is neutrality; we return to the state of disengagement that existed prior to the breaking of the peace. The Cylon can go there way in peace, and we can go ours.

It may be objected that pragmatic necessity demands the inclusion of the Cylon. On this point I can agree; collaboration on New Caprica was, to some extent, necessary for the preservation of the human race, and cooperation with the rebel Cylon in order to destroy the Resurrection Hub and find Earth was also necessary to our most dearly held policy goals. But the rebel Cylon do not now offer survival, but only convenience, and to accept their offer would be to deny the memory of the 49 billion or so that these very Cylon butchered four years ago. And that is far, far too high of a price to pay.

Farce And Tragedy

[ 0 ] February 11, 2009 |

Shorter Bryan Stevenson: “First, the Yankees don’t believe that African-Americans should be enslaved. Then, they don’t believe that women should be enslaved. Always the aggressors!”

For Judicial Term Limits

[ 2 ] February 10, 2009 |

Sandy Levinson makes the argument again. Before I get to some potential objections, I think a couple points should be emphasized. First, it’s abundantly clear that life tenure is in no way a requirement of liberal democracy — as Levinson notes, the United States is an extreme outlier among constitutional democracies, and non-renewable terms with good pensions are clearly sufficient to protect judicial independence. Second, there are some very clear costs associated with life tenure. The most important are 1)the possibility that judges will stay on although they clearly no longer have the capacity to serve (which is not hypothetical; cf. Rehnquist and Douglas) and 2)the fact that what presidents get appointments is a random process that leads to a skewed composition of the courts (again, not hypothetical; Nixon got twice as many appointments in six years as Carter and Clinton got in twelve, with real political consequences.) The fact that younger judges can serve longer compounds this arbitrariness.

So what advantages could life tenure have that could outweigh the undeniable costs? One potential response is nightmare scenarios. With all due respect, this response has to be considered highly unconvincing. It should first of all be noted that the alleged bad consequences involved in a president appointing five justices depends entirely on an unlikely 15-year limit rather than the much more likely 18-year limit (one every two years.) And, of course, a two-term president could easily get 4 or 5 appointments under the current system anyway. But more importantly, it simply misunderstands the nature of judicial power, which is by its nature politically marginal and dependent on the other branches. First of all, if the other branches of government started to agree with Thomas that the New Deal was unconstitutional, it wouldn’t matter what the Supreme Court thought because they could just repeal the programs. Nor would I be worried about the return of the “Constitution-in-Exile,” because if the Court tried to impose pre-1936 constitutional rules in the current polity it would stick for about 10 minutes. The judiciary will never win that kind of power struggle with the political branches, and this is just as true when they have life tenure as when they have long term limits. (And, of course, if the courts were violently out of step with the political branches the government could easily make life tenure irrelevant by just adding more justices to the Court.) I also think it exaggerates things greatly to say that Bush v. Gore proved that the courts are all-powerful, since after all the only political actors who could have challenged the Court agreed with the Court. If the Court had also decided McCain v. Obama, that would be different, but of course they wouldn’t. I don’t think that such hypothetical are very useful. (And, of course, it ignores the other sie of the coin: situations like the New Deal when reactionary holdovers of the old regime obstruct political change strongly favored by the elected branches.)

Another argument about judicial independence is that judges who have to retire will be more corporate-friendly because they will need jobs after they retire. Again, this is exceptionally implausible. Retired judges will have full-salary pensions and very promising employment prospects should they choose too, and are also unlikely to have many working years ahead of them. Any judge who would be so strongly motivated by such trivial and hypothetical future financial gains would never agree to serve on the Court in the first place.

Levinson is right: life tenure (which, it should be noted, was much less problematic when being a federal judge wasn’t a very good job and life expectancies were shorter) involves many costs with essentially no benefits. The country would be better off if it were done away with.

Worst American Birthdays, vol. 46

[ 0 ] February 10, 2009 |

Talk-show host and Incredibly Strange Man Glenn Beck turns 45 today. A former substance abuser and sufferer from adult-onset Mormonism, Beck vaulted into media prominence from the back of Terri Schiavo, whom he had saddled up nearly five years before the Republican Party discovered her in early 2005. After riding the Schiavo case to its inevitable conclusion, the triumphant Beck earned the chance to bring his unique version of methodological schizophrenia to a national television audience in the early fall of 2006. Since then, he has received numerous awards for his work, including the coveted Fistulae Prize for Most Hyperbolic Reaction Ever to Routine Hemorrhoid Surgery (Transparent Drug-Seeking Behavior Division).

On occasion, Beck has described himself as a “rodeo clown,” a comparison we might find apt if only rodeo clowns were known for their bizarre, racist tirades about immigrants; their evidence-free insinuations about the loyalties of Muslim Americans; uninformed, documentary-length hypotheses about science; or their dueling preoccupations with Hitler and Antichrist, which provide them with readily interchangeable frameworks to characterize people with whom they happen to disagree. Most rodeo clowns, moreover, possess the additional virtue of not weeping when they consider the life of George Washington, nor do they spend their non-Red/Nazi/Antichrist-baiting moments writing bathetic holiday novels about handmade sweaters:

I began writing this story with the intention of sharing it with just my family. But something happened along the way: The story took over and wrote itself. There are things I spent years trying, and eventually succeeding, to forget that just spilled out of me — events I never intended to share with anyone. It’s almost as if my sweater wanted its story told. Perhaps it had sat silent on a shelf long enough.

One might wonder if Glenn Beck’s talking sweater would be more or less of a douchebag than Glenn Beck himself. A living refutation of the principle that low ratings should pose an obstacle to career advancement, the erstwhile star of Headline News was recently offered a make-work position at the Fox News Channel after his contract negotiations with CNN foundered. As it happened, CNN was hoping to replace the late evening re-run of Beck’s program with a re-run of Lou Dobbs or — in a move that would have actually expanded the 8 p.m. audience — with a web cam trained upon a tub of guinea pigs.

Wherein I Agree with Jonah Goldberg

[ 0 ] February 10, 2009 |

BSG Spoilers, etc.

Jonah has a good point on Tom Zarek:

The brilliance of Zarek’s night of the long knives was that he understood better than anyone what they were doing. He was the consummate revolutionary and former terrorist, who understood at every step that victory mattered more than anything else (note: as a moral matter, I think this is all nuts) because he day dreamed about power while pretending to be a democrat. What I like about the characters on BSG is that they are flawed, deeply flawed, sometimes idiotically flawed. The notion that Zarek wouldn’t cross that line stems from a misguided belief that people with good intentions don’t end up doing terrible evil.

The one caveat I’d add is this; Zarek had the Quorum executed just a bit too early. He had the legislative body under his literal, physical control, and there was no need to execute them prior to their arrival at a decision. Adama was, as Zarek realized, a different proposition; Gaeta would have been well advised to shoot him in the back of the head at the first opportunity. The Quorum, however, represented no real threat to Zarek and considerable opportunity. Executing them when he did was premature. That said, I can understand why the writers telescoped events.

H/t Duss.

Maritime Bloggingheads

[ 0 ] February 10, 2009 |

Galrahn and I sat down last week and diavlogged about all things maritime. He’s our discussion of the “rise” of Chinese naval power:

We also talk about piracy, Robert Gates, and public relations. Check it out.