Berks County Bar Association The Berks Barrister Winter 2019 - 14

w w w.BERKSBAR.org

From My Perspective

18 or L i f e to Go ?

Time for Term Limits to End Political Gamesmanship
in the U.S. Supreme Court Nomination Process
By Raymond Edward Baker, Esquire

B

rett M. Kavanaugh was sworn in on October 6, 2018 as the
114th Supreme Court Justice in the history of the United
States.i He joined the high court following a monthlong nomination battle with the Senate Judiciary Committee
amid allegations of sexual assault, perjury, and a lack of judicial
temperament. Kavanaugh took his oath and joined the Court
barely two years after Senate Majority Leader Mitch McConnell
broke with 140 years of Senatorial precedent by refusing to
forward President Barack Obama's nomination of Judge Merrick
Garland to the Senate Judiciary Committee for a confirmation
hearing in 2016.ii These last few fraught years of Supreme
Court nominations have led many to ponder whether the Court
has become too politicized and whether the idea of lifetime
appointments to Article III Courts have outlived their usage. This
begs the question-what would be the benefit to restructuring to
the third branch of our federal government?
The Supreme Court, and all federal courts, derives its
authority from Article III of the Constitution.iii Each Judge or
Justice is appointed by the President and confirmed by the full
Senate.iv Its beginning was smooth enough, as every original
Supreme Court Justice chosen by President George Washington
received unanimous consent.v The pundit class seems to pine
for those days of the late 18th Century through the early part
of the 20th Century, which have been described as "a time with
more civility,"vivii because of the perceived lack of politicization
of the Courts and the confirmation process. However, it would
be disingenuous to pretend that the floor of the Senate and the
Senate Judiciary Committee are not littered with the broken
dreams of would-be Supreme Court Justices.
14 | Berks Barrister

From all but one of John Tyler's nomineesviii, to Robert Bork,
to Merrick Garland, each century contains many qualified lawyers
who were denied the opportunity to ascend to the Supreme Court
Bench.ix A cursory review of the 18th Century revealed a total
of two nominees who failed to be confirmed by the Senate.x The
19th Century had 20 nominees fail to garner enough support for
their nominations while the 20th Century had only eight.xi Now,
one-fifth of the way through the 21st Century, only two nominees
did not join the Court (Garland & President George W. Bush
selection Harriet Miers). This demonstrates that the number of
nominees who have failed to be confirmed is actually decreasing as
we've grown older as a nation. However, for many reasons people
are still clamoring for changing the process of picking our federal
judges and Supreme Court justices. But what can be done?
In 2012, long before the names of Merrick Garland or Brett
Kavanaugh were of any consequence to the average American,
Republican Presidential hopeful and former Texas Governor Rick
Perry floated a novel idea for selecting Supreme Court justices.
Perry pledged that he would work with Congress to amend
the Constitution to limit all Supreme Court justices to a single,
18-year term and stagger the end of each justice's term by two
years.xii Thus, presidents would be limited to just two Supreme
Court nominees during a four-year term.xiii While Rick Perry'sxiv
presidential dreams faded in 2012 and died in 2016, his idea for
Supreme Court term limits has lived on.xv
So what would be the benefit for the Court and the nation
if such a limit was imposed? It would put us on par with other
nationsxvi and even states that do not allow lifetime appointment
of judges. Further, eliminating lifetime appointments would likely


http://www.berksbar.org

Berks County Bar Association The Berks Barrister Winter 2019

Table of Contents for the Digital Edition of Berks County Bar Association The Berks Barrister Winter 2019

Berks County Bar Association The Berks Barrister Winter 2019 - 1
Berks County Bar Association The Berks Barrister Winter 2019 - 2
Berks County Bar Association The Berks Barrister Winter 2019 - 3
Berks County Bar Association The Berks Barrister Winter 2019 - 4
Berks County Bar Association The Berks Barrister Winter 2019 - 5
Berks County Bar Association The Berks Barrister Winter 2019 - 6
Berks County Bar Association The Berks Barrister Winter 2019 - 7
Berks County Bar Association The Berks Barrister Winter 2019 - 8
Berks County Bar Association The Berks Barrister Winter 2019 - 9
Berks County Bar Association The Berks Barrister Winter 2019 - 10
Berks County Bar Association The Berks Barrister Winter 2019 - 11
Berks County Bar Association The Berks Barrister Winter 2019 - 12
Berks County Bar Association The Berks Barrister Winter 2019 - 13
Berks County Bar Association The Berks Barrister Winter 2019 - 14
Berks County Bar Association The Berks Barrister Winter 2019 - 15
Berks County Bar Association The Berks Barrister Winter 2019 - 16
Berks County Bar Association The Berks Barrister Winter 2019 - 17
Berks County Bar Association The Berks Barrister Winter 2019 - 18
Berks County Bar Association The Berks Barrister Winter 2019 - 19
Berks County Bar Association The Berks Barrister Winter 2019 - 20
Berks County Bar Association The Berks Barrister Winter 2019 - 21
Berks County Bar Association The Berks Barrister Winter 2019 - 22
Berks County Bar Association The Berks Barrister Winter 2019 - 23
Berks County Bar Association The Berks Barrister Winter 2019 - 24
Berks County Bar Association The Berks Barrister Winter 2019 - 25
Berks County Bar Association The Berks Barrister Winter 2019 - 26
Berks County Bar Association The Berks Barrister Winter 2019 - 27
Berks County Bar Association The Berks Barrister Winter 2019 - 28
Berks County Bar Association The Berks Barrister Winter 2019 - 29
Berks County Bar Association The Berks Barrister Winter 2019 - 30
Berks County Bar Association The Berks Barrister Winter 2019 - 31
Berks County Bar Association The Berks Barrister Winter 2019 - 32
Berks County Bar Association The Berks Barrister Winter 2019 - 33
Berks County Bar Association The Berks Barrister Winter 2019 - 34
Berks County Bar Association The Berks Barrister Winter 2019 - 35
Berks County Bar Association The Berks Barrister Winter 2019 - 36
Berks County Bar Association The Berks Barrister Winter 2019 - 37
Berks County Bar Association The Berks Barrister Winter 2019 - 38
Berks County Bar Association The Berks Barrister Winter 2019 - 39
Berks County Bar Association The Berks Barrister Winter 2019 - 40
Berks County Bar Association The Berks Barrister Winter 2019 - 41
Berks County Bar Association The Berks Barrister Winter 2019 - 42
Berks County Bar Association The Berks Barrister Winter 2019 - 43
Berks County Bar Association The Berks Barrister Winter 2019 - 44
Berks County Bar Association The Berks Barrister Winter 2019 - 45
Berks County Bar Association The Berks Barrister Winter 2019 - 46
Berks County Bar Association The Berks Barrister Winter 2019 - 47
Berks County Bar Association The Berks Barrister Winter 2019 - 48
https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Springr2020
https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Fall-Winter2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2019
https://www.nxtbook.com/hoffmann/BerksBarrister/BerksBarrister_Springr2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Winter2019
https://www.nxtbook.com/hoffmann/BerksBarrister/Berksbarrister_Summer2018
https://www.nxtbook.com/hoffmann/BerksBarrister/berksbarrister_winter2017
https://www.nxtbookmedia.com