Will Stephen Breyer retire this summer?

[Statilius the Epicurean]

I've never understood the clamour for term limits or a mandatory retirement age, when the entire problem is partisan judges being appointed on party line votes and the opposition blocking and delaying nominations again for partisan reasons. If Breyer was term limited to 2023 liberals would still be calling for him to retire before the midterms!

The only way to stop the party politicisation of SCOTUS and prevent tactical retirements and blocking actions is to raise the bar for judicial confirmations to 67 votes in the Senate so that every justice by necessity is a bipartisan appointment.

[Statilius the Epicurean]

Ah yes, the filibuster has been great at encouraging bipartisanship.

The filibuster was in the Senate rulebook and was circumvented by the nuclear option requiring 50 senators. Everything being discussed here (term limits etc.) would require a constitutional amendment to add and remove.

With the arguable exception of Alito, the Justices haven’t been particularly loyal to the President/party that appointed them.

I don't know what this means. If judges aren't particularly partisan then why the extreme constitutional hardball from both parties over judicial appointments, to the point of keeping seats vacant for months?

At any rate, if one believes this then there is no need for reforms like your independent body at all.

[Statilius the Epicurean]

You said that 67 votes should be required for appointment to promote bipartisanship (or politically neutral judges). My point is that this hasn’t helped much elsewhere.

Because bipartisanship required by the filibuster could be circumvented by changing the Senate rulebook with 50 votes on a party line....

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

As for why there is such a spectacle, I think this is because both parties have realised that it is more enduring and effective to get their ideas deemed as enshrined in the Constitution rather than getting people to vote for them. (This is a flaw of the constitutional system.)

Right, so the claim that justices "aren't partisan" is semantics.

Mitch McConnell isn't an idiot. If Republican and Democratic justices didn't exist, then he wouldn't have bothered blocking Merrick Garland. And RBG, also not an idiot, would have happily stepped down under Trump to preserve her health.

[Statilius the Epicurean]

I think I’m missing the point you’re trying to make.

The filibuster for judicial confirmations failed to stop constitutional hardball over judges because there was always an out for the governing party to remove it if they had 50 votes. That's part of the reason why (as unlikely as it is) you need a constitutional amendment to deal with the problem.

[Statilius the Epicurean]

I think I’m missing the point you’re trying to make.

The filibuster for judicial confirmations failed to stop constitutional hardball over judges because there was always an out for the governing party to remove it if they had 50 votes. That's part of the reason why (as unlikely as it is) you need a constitutional amendment to deal with the problem.

Oh right. I suspect it would just result in paralysis; having to get to 60 votes hasn’t encouraged much bipartisanship’s.

Yes, I suppose it's possible that parties would just point blank block even the most moderate nominations by the opposing party and the federal judiciary would cease to function. But if that's the case then divided government is impossible and a civil war would be on the cards.

Presumably if a constitutional amendment requiring 67 votes for federal judicial confirmations did pass, it would only do so as part of some bipartisan agreement to depoliticise the judicial branch.