Perry proposes end of life tenure

Raftery, William wraftery at ncsc.org
Wed Nov 16 07:03:53 PST 2011


I can think of several ways to retain a single chief justice with a multi-panel court of last resort.


1)      State constitutions in Arizona and Nebraska specifically contemplate the court sitting in panels or "divisions". Connecticut statutorily has a similar mechanism. Moreover, the Alabama Supreme Court has interpreted its constitution as permitting panel sitting. The Chief Justice remains the chief justice of the court as a whole.



2)      Consider the following proposal introduced this session in Florida. HJR 7111, as introduced, would have maintained "one supreme court" for the state of Florida but divided it into two panels of 5 (one for civil appeals, the other criminal). This would not have been the Oklahoma/Texas models of two separate courts. The proposal would have rotated the Chief Justice of the State of Florida (two years the CJ of the Civil, next two years the CJ of the Criminal, etc.) It passed the FL House, was decried as a court packing plan, and stripped from the Senate version.


3)      Convert the "Chief Justice of the United States" to a purely administrative posting and allow the court or panels to appoint Presiding Judges. The 1976 Georgia Constitution envisioned the possibility of such a split (Chef Justice/Presiding Justice), although the Chief Justice remains an active member of the court and never became a purely administrative posting.


4)      Roscoe Pound at one point proposed a very, very similar concept of his vision of a single "Court of Justice" for each state. Rather than randomization, however, he proposed cycling through. Thus, a judge would spent X years on the limited jurisdiction court, then general jurisdiction, then the state's intermediate court of appeal (if they wanted to create one), and then the court of last resort.

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Finkelman, Paul <paul.finkelman at albanylaw.edu>
Sent: Tuesday, November 15, 2011 7:19 PM
To: Howard Wasserman; Lichtman, Steven; conlawprof at lists.ucla.edu
Subject: RE: Perry proposes end of life tenure

As a constitutional historian, I remind people that the most popular (and successful) president in American history -- following the most overwhelming election victory in modern times -- lost massive support after his court packing plan.  Let's get some reality here.  Whatever their merits, these proposals would require an amendment. Otherwise they would just smack of political court packing.

Article I Sec 3 refers to "the Chief Justice of the United States" but under the Roland proposal there would not be a "chief Justice" but many different chief justices. This is just one of the many problems with Mr. Roland's proposal, and his belief that this could be done by statute.

Congress could abolish the courts of appeals and send the supreme court justices back on circuit; but that is not what is being proposed here.

Congress could abolish the District Courts.  Or all other courts except "One Supreme Court."  Hard to imagine how you have "one supreme court" with no one actually serving on it.

But as a political matter there proposals would require an amendment.

But, as a political matter, there are three reasons why Rick Perry will not be president;
1) he is not all that bright
2) he can't debate and
3)  ........     (I just can't remember the third; or alternatively, there are 100  possible right answers for the Third one)




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Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
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518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
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________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Howard Wasserman [wasserma at fiu.edu]
Sent: Tuesday, November 15, 2011 6:27 PM
To: Lichtman, Steven; conlawprof at lists.ucla.edu
Subject: RE: Perry proposes end of life tenure
Sorry again; our e-mail system is a bit quirky:

http://balkin.blogspot.com/2009/02/reforming-supreme-court.html

Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
http://ssrn.com/author_id=283130
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Howard Wasserman [wasserma at fiu.edu]
Sent: Tuesday, November 15, 2011 6:26 PM
To: Lichtman, Steven; conlawprof at lists.ucla.edu
Subject: RE: Perry proposes end of life tenure
Here are two posts from Jack Balkin explaining the Carrington proposal and how it would work:

Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
http://ssrn.com/author_id=283130
________________________________
From: Howard Wasserman
Sent: Tuesday, November 15, 2011 6:24 PM
To: Lichtman, Steven; conlawprof at lists.ucla.edu
Subject: RE: Perry proposes end of life tenure
The Carrington proposal would not end life tenure. It would just require justices to take senior status after 18 years and would provide that the 9 junior-most justices will hear most cases (unless there is a recusal). The senior justices retain their tenure and guaranteed salaries; they would sit to fill in the panel when there is a recusal and they could sit on lower courts.

Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasserman at fiu.edu
Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
http://ssrn.com/author_id=283130
________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Lichtman, Steven [SBLichtman at ship.edu]
Sent: Tuesday, November 15, 2011 6:14 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Perry proposes end of life tenure

I'm not sure I agree that it can be done by statute, since Perry is proposing an end to life tenure.  Does not that directly conflict with the requirement that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour"?



Cheers,

Steven



FYI, it's in Scot Powe's piece in "Stupidities / Tragedies", though I think Sandy Levinson has raised it elsewhere as well.  Worth mentioning that Perry's getting his stuff from a couple of Texas academics ...




________________________
Dr. Steven Lichtman
Associate Professor of Political Science and Pre-Law Advisor
Shippensburg University
Department of Political Science - Grove Hall 413
1871 Old Main Drive
Shippensburg, PA  17257
(717) 477-1845
http://webspace.ship.edu/SBLichtman/lichtman.htm
http://www.ship.edu/political_science/steven_lichtman


________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Jon Roland [jon.roland at constitution.org]
Sent: Tuesday, November 15, 2011 5:43 PM
To: Howard Wasserman
Cc: conlawprof at lists.ucla.edu
Subject: Re: Perry proposes end of life tenure
On 11/15/2011 04:27 PM, Howard Wasserman wrote:
Would this require an amendment?
No. Nothing in the Constitution says a judicial appointment is to any particular court.

Why couldn't Congress do this by statute, since it goes more to organizational details?
It could. I propose it as an amendment to entrench it and get buy-in from a broad constituency that might be swayed by reliance interests.



-- Jon



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