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Reform Supreme Court with term limits

The following letter to the editor by Peter Fuller of Arlington under the headline "Reform the Supreme Court, and start with term limits" was republished with the author's permission.kavanaugh ford

The Supreme Court has long been an ideological institution, tacking between liberal and conservative interpretations of the law.

But now it’s becoming something far worse: an instrument of our poisonous, hyperpartisan politics.

Brett Kavanaugh was a particularly painful case in point. The nominee lit into Democrats during his confirmation hearings and called the sexual assault allegations against him “revenge on behalf of the Clintons,” before ascending to the court on a narrow near-party-line vote.

Now he sits on a tribunal more starkly divided than any in memory — five conservatives, all appointed by Republican presidents, and four liberals, all appointed by Democrats. And in the coming years, we’re sure to see a string of divisive 5-4 decisions that will further erode public confidence in the highest court in the land.

It’s time for Congress, and the American people, to seriously consider reform. And they should start with term limits.

The most widely discussed plan, endorsed by liberal and conservative legal scholars alike, would impose staggered 18-year terms on Supreme Court justices, with each president guaranteed a pick every other year.

Term limits wouldn’t spell the end of the partisan sniping, of course. But they would relieve some of the Sturm und Drang of the process. Appointments wouldn’t feel so consequential if they happened at regular intervals.

One ancillary benefit: We wouldn’t have so many justices serving into their 80s and 90s, when mental decline can set in.

The consensus view is that term limits would require a constitutional amendment. But some legal scholars argue that Congress could take action itself. Armed with that opinion, lawmakers should make a high-profile push. Even if they’re stopped in the courts, the effort could provide momentum for an amendment.

Another way to lower the stakes for any given Supreme Court nomination is to expand the court. There is no constitutional mandate for the size of the court. Indeed, it has fluctuated in size, from six to 10. A court of 15 or 17 justices could allow for a broader range of views and deeper expertise on the tricky technological and political questions landing before the 21st-century court.

Any talk of a larger tribunal raises legitimate concerns about “packing the court” — tilting it left or right with nominees of a particular political persuasion. But those concerns could be allayed if they were paired with another reform: a reimagined nomination process, built on bipartisanship.

One idea: The Senate could create a judicial nominating commission comprising the Senate majority leader, the Senate minority leader, and the chairman and ranking member of the Senate Judiciary Committee. Together, the panel of two Democrats and two Republicans could recommend four or five judges to the president, and ask him to choose one.

Making those picks binding would probably require a constitutional amendment. But the Senate could create a nonbinding commission right now. And it would probably have enormous sway.

The constitution requires the Senate to provide “advice and consent” on Supreme Court picks. This could be that advice.

A nominating commission could force some moderation on the president. But the Senate could also impose some moderation on itself by reinstituting the filibuster for Supreme Court nominees. A 60-vote threshold would prevent confirmation of the most controversial picks — picks like Kavanaugh.

Of course, the filibuster raises the specter of gridlock. But a little gridlock is a small price to pay for the legitimacy of the court. And if the Senate struggled to confirm anyone to the court, that could force more far-reaching reforms, like term limits or a judicial nominating commission.

We need a tempered, respected Supreme Court now more than ever. But hope for that kind of panel is slipping away. It will take a determined effort to pull it back, and it can’t start soon enough.


This letter was republished Tuesday, Oct. 9, 2018.


Senator Collins has some explaining to do

The following letter by Jo Anne Preston of Arlington was published in the Oct. 10 Boston Globe with the online headline "The question for Collins: What did you discuss over lunch?" It is republished with the author's permission:

Re “Susan Collins goes all in for Kavanaugh – and for Trump” (Editorial, Oct. 6): I found that many of the statements in Senator Collins’s 45-minute speech did not comport with what I heard while listening to the hearings.

The most troubling to me, because it was so far from what actually occurred at the hearings, was Collins’s statement that Brett Kavanaugh could “work to lessen the divisions in the Supreme Court.” In contrast, in Judge Kavanaugh’s testimony at the final hearing, he complained loudly that he was the victim of some conspiracy involving the Clintons and threatened that “what goes around, comes around.” It would take a great deal of imagination to think of him as a peacemaker.

The even more puzzling feature of Collins’s Friday performance was the supposed delay in making her decision until 3 p.m., after a lunch with top Republican leaders. Her lengthy speech declaring and detailing her support for Kavanaugh had to have been written days, if not a week, before the Friday lunch.

What, then, was the purpose of that lunch? Was it perhaps to discuss how the Republican leaders could reward Collins? Maybe there was mention of the possibility of a future ambassadorship, appointments to lucrative and powerful corporate boards, or an important position in the Trump administration?

Kavanaugh’s Supreme Court votes will increasingly demonstrate that he has no intention of fulfilling any of his promises to Collins, making her reelection problematic. Maine voters will start to consider the need for a new senator.

Most likely, however, Collins has set her sights higher. And her ringing endorsement of Kavanaugh will make possible her ambitions.


This letter was republished Tuesday, Oct. 9, 2018.


We are bearing witness to a harmful culture of male control

The following letter by Emily Fox-Kales of Arlington was published in the Sept. 27 Boston Globe and is republished with her permission. The writer is a clinical psychologist and is a visiting scholar at the Women’s Studies Research Center at Brandeis University.

The firestorm surrounding Brett Kavanaugh’s confirmation forces us to confront how little has changed in the male constituency and control of the Senate Judiciary Committee, which wields such power over not only our present but our future in confirming Supreme Court justices (“Kavanaugh, GOP strike back,” Page A1, Sept. 25).

It was especially chilling to witness Republicans close ranks this week as they dismissed accusations of Kavanaugh’s sexual assaults as mere adolescent indiscretions, completely ignoring the psychological reality that sexual violence and humiliation of young women and girls is far from a youthful prank; rather, it can result in lifelong trauma.

It is a sobering coincidence that the 1997 memoir written by Kavanaugh’s prep school classmate Mark Judge, recalling the wild party culture they shared, bears the same main title, “Wasted: Tales of a GenX Drunk,” as that of a searing autobiography written about the same time revealing a young woman’s struggle with an eating disorder (“Wasted: A Memoir of Anorexia and Bulimia”).

The well-established correlation between eating disorders, depression, and substance abuse with a history of sexual trauma documents just one of the many scars left by such young men’s disregard for the bodies and psyches of their female classmates — disregard that is being normalized in our national discourse as boys just being boys. 


This letter was republished Saturday, Sept. 29, 2018.

Town of Arlington to LGBTQIA+ students: You belong
 

Comments

Kurt Fusaris on Sunday, 21 October 2018 16:49
Agree with Mr. Fuller

I agree 100% with Peter Fuller's assessment. Those are reforms that can and should be implemented. The Constitution merely states that Supreme Court justices serve during good behaviour. Ostensibly we ask the same of our president and members of Congress and yet we limit their terms. While members of Congress can run indefinitely, they do need to be tested by voters again during each of their election cycles. Imposing 18 year term limitations on the Court seems very reasonable. Mr. Fuller is also correct in that there is nothing barring Congress from installing additional justices to the court. I dare say that once Democrats regain the White House and the Senate, let's bring in Justice Obama, Justice Clinton, and Justice Merrick Garland just as one last big middle finger to Mitch McConnell's legacy of gamesmanship, hypocrisy, and destruction of our democratic institutions. The idea of a bipartisan commission is good, too. In fact, this is similar to what they do in the UK - though more or less in reverse order. It is my understanding that the Court commissions a panel to nominate a justice and then that person must be approved by the Lords. The sovereign, mainly as a ceremonial act, offers final assent. In fact, right here in Massachusetts, we have a Governor's Council. which is a panel of representatives elected every two years from their respective districts. One of its roles is to provide advice and consent to gubernatorial appointments, including judges. Since they are subject to election, it can better reflect the will of the people than if they were appointed by the governor. Even something like this on the national level could be a big improvement than what is in place now.


I agree 100% with Peter Fuller's assessment. Those are reforms that can and should be implemented. The Constitution merely states that Supreme Court justices serve during good behaviour. Ostensibly we ask the same of our president and members of Congress and yet we limit their terms. While members of Congress can run indefinitely, they do need to be tested by voters again during each of their election cycles. Imposing 18 year term limitations on the Court seems very reasonable. Mr. Fuller is also correct in that there is nothing barring Congress from installing additional justices to the court. I dare say that once Democrats regain the White House and the Senate, let's bring in Justice Obama, Justice Clinton, and Justice Merrick Garland just as one last big middle finger to Mitch McConnell's legacy of gamesmanship, hypocrisy, and destruction of our democratic institutions. The idea of a bipartisan commission is good, too. In fact, this is similar to what they do in the UK - though more or less in reverse order. It is my understanding that the Court commissions a panel to nominate a justice and then that person must be approved by the Lords. The sovereign, mainly as a ceremonial act, offers final assent. In fact, right here in Massachusetts, we have a Governor's Council. which is a panel of representatives elected every two years from their respective districts. One of its roles is to provide advice and consent to gubernatorial appointments, including judges. Since they are subject to election, it can better reflect the will of the people than if they were appointed by the governor. Even something like this on the national level could be a big improvement than what is in place now.
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