Will Stephen Breyer retire this summer?

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

Also, a mandatory retirement age might make the whole scene more polical; you would, after all, know in exactly which term they would have to retire.

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

No such thing as a truly independent body, which is why there'd be no reason for the conservatives to go along with it. Any variation on the "Missouri Plan" for federal judges would rely on the bar, and lawyers are overwhelmingly liberal (and this is reflected in the ABA).

At any rate, it'd probably be unconstitutional — the Advice and Consent Clause specifically mentions the power to appoint "judges of the Supreme Court" as among the President's powers.

Sure, it wouldn't/couldn't happen, but my point is that the current process is rather farcical, and it doesn't really matter whether it's "political" or not, the mere appearance of that is enough to do tremendous harm. In my view, this is all something of an inevitable result of the constitutional settlement, but here we are.

The Missouri plan is at least better than the absurdity of electing judges (though it's not absent from it).

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

Also, a mandatory retirement age might make the whole scene more polical; you would, after all, know in exactly which term they would have to retire.

What do you think of mandatory term limits in general?

I haven't given too much thought to them, and I don't think they're the worst idea put forth about judges; but I am generally opposed to them, or think they should be high (say, 85). The 70 age-limit we have here strikes me as quite silly.

[Geoffrey Howe]

Ah yes, the filibuster has been great at encouraging bipartisanship.
With the arguable exception of Alito, the Justices haven’t been particularly loyal to the President/party that appointed them.

[Geoffrey Howe]

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.

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.

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.)

Here’s what Breyer himself says more eloquently than I (skip to 4:50 if you like)

[Geoffrey Howe]

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.

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.

I’m open to hearing examples of blatant partisanship (and don’t deny they occur). But in the main I think this is still true. With the rise of originalism, Republican presidents can be more confident that their Justices will align with them (though still not always), but, again, that is a function of their (abstract) view of the law, not who they vote for.

[Geoffrey Howe]

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....

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

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.

Yes, perhaps it is a semantic difference and I’m too sensitive to criticism of the Justices.

[Geoffrey Howe]

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.

[Geoffrey Howe]

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.

I’m open to hearing examples of blatant partisanship (and don’t deny they occur). But in the main I think this is still true. With the rise of originalism, Republican presidents can be more confident that their Justices will align with them (though still not always), but, again, that is a function of their (abstract) view of the law, not who they vote for.

The "rise of originalism" is not particularly important; given the multiple forms of originalism and the extent of historical scholarship you can fashion an "originalist" argument in favor of just about anything. Part II of Justice Breyer's dissent in Heller, for instance, surveys a range of laws in the colonies that restricted gun ownership, while Justice Scalia's majority likewise draws on various founding-era statutes to support the opposite conclusion. Left-leaning judges and justices are less conversant in it and less likely to draw upon it unprompted, but the tradition does not exclude left-wing results.

This is certainly true (and a retort to the idea that originalism makes judges more “honest”). There seems to have been a lot of blatant partisanship or political views in the 19th and early 20th centuries. Perhaps 1950-1990 is beginning to look like a golden era?

My point is not to criticize judges’ use of history in general or to suggest that it always generates indeterminate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that Justice Scalia’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the judge’s cards are laid on the table for all to see, and to critique.