Much is being made about the revelation in the New York Times anonymous op-ed that members of the cabinet discussed potentially invoking the 25th amendment to the Constitution as a means of ending the national nightmare otherwise known as the Trump presidency.  As a blogger there were multiple avenues to go down in response to the news.  Consider the following.

• How Trump has the unique ability to get everyone with whom he comes in contact to prostitute themselves to protect him.  The latest example?  Mr. Libertarian Rand Paul now believes the government should conduct lie detector tests to ferret out the exercise of free speech.
• In contrast to all of the national security officials who came to John Brennan’s defense knowing it could cost them their own security clearances, Trump’s “best people” treated the American people to a cacophony of “I am NOT Spartacus” or as several comedians have noted, we now have a #notme movement.
• Is “anonymous” a hero or coward?
• Would invoking the 25th amendment cause a “Constitution crisis” as anonymous suggests or avert one?
• And of course, America’s #1 parlor game, “Who is anonymous?”

As you may have noticed, I have not posted an article since last Sunday due to the fact I had been unable to find the story no one else was telling.  Until yesterday. While walking our dog,   I was listening to an interview with David A. Kaplan, author of The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution.  Kaplan believes the rancor over recent Supreme Court nominees is less about the candidates but the fact the nine justices have become a de facto legislative body.  In short, he thinks the Court, which can set its own agenda, erred by taking cases which should have been decided by Congress or state legislatures.  In cases where federal or state laws were deemed contrary to the Bill of Rights, the Court’s responsibility was not to lay out the remedy but simply nullify the statute and tell legislators to fix it.

My first thought was, if Kaplan’s support of this “strict constructionist” perspective on judicial review had ruled the day, many landmark decisions (e.g., Miranda and of course Roe v. Wade) might not have made it onto the Court’s calendar.  But neither would have Citizens United or Burwell v. Hobby Lobby.  What if Kaplan was right?  But every good question leads to a better next question.  For me, that inquiry became, “How would Kaplan’s view effect the Senate confirmation process, not just of Brett Kavanaugh, but of past and future nominees to the Court?”

Which leads me to the need for a 28th amendment.  Kaplan is understating his case.  The Court not only occasionally legislates, it actually AMENDS the Constitution.  Nowhere in the original articles or any of the current 27 amendments does the Constitution say “corporations are people.”  Nor does it equate “money” with “speech.”  Likewise, the document does not define what constitutes “marriage.”  Regardless on which side of the ideological spectrum you stand, it is pretty clear the Constitution has been amended, not just interpreted, outside of the process enumerated in Article V.

Now, I am not crazy enough to think we can erase 200 plus years of judicial overreach.  That horse has left the barn.  But we can recognize and manage reality.  First, the tenure of Supreme Court justices has changed over time.  If you exclude the current panel, the average tenure of a justice was just under 17 years (less than the widely recognized length of a single generation).  Of the incumbents, Clarence Thomas has been on the Court for 28 years; Ruth Bader Ginsburg, 26 years; Stephen Breyer, 25 years.  If confirmed, Kavanaugh at age 53, could easily match or exceed those years of service.

Therefore, I propose the following changes to the judicial nomination process.

• The confirmation of a justice should require a two-thirds super majority of the Senate.  Why this number?  Article V (Mode of Amendment) states Congress may propose amendments “whenever two thirds of both Houses shall deem it necessary.”  If the Senate is going to delegate its authority to virtually amend the Constitution, should they not hold the confirmation of a nominee to that same standard of support?
• The tenure of a Supreme Court justice be limited to 12 years.  My choice of length is somewhat arbitrary but based on the belief the term should exceed that of a single president.  Similar to the 22nd Amendment, a justice could be re-nominated and confirmed for a second 12 year term, putting the maximum tenure at 24 years.

If we had a living, breathing Congress there would be no need for a 28th amendment.  Congress has the power to legislate its own procedures and therefore could establish a two-thirds majority as the minimum requirement for judicial nominees.  [PERSONAL NOTE:  During my time as a policy director at the National Governors Association, we required sign-off by two-thirds of all governors before sending a communication or policy position to the White House or Congress.  It made our jobs harder but resulted in a much stronger bargaining position.] Additionally,  nowhere in Article III (Judicial) does it specifically state judges must have lifetime appointments.  For the record, Article III, Section 1 states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

A strict constructionist would argue the first sentence gives Congress the right to establish not only the courts but to set parameters for their operations. The second sentence suggests only that a judge may be removed for bad “behaviour” but is silent otherwise.

But don’t hold your breath.  Which is why we need these changes in the form of a Constitution amendment.  If regulating the salary of members of Congress (the 27th Amendment) was worthy of consideration, it is hard to believe the integrity of the judicial system is not.  #28thamendment

POSTSCRIPT

There is also the political implications of Kaplan’s thesis if you think counter-intuitively about other aspects of an activist judiciary.  Take one example–Roe v. Wade.  Suppose the Court had not taken the case.  Then the debate over a woman’s right to choose would have been decided by state legislatures, but more importantly at the ballot box, by the people who pick the legislators.  According to a July 2018 Gallup poll, 64 percent of voters oppose the Court overturning Roe v. Wade.  Only 28 percent support repeal.  My question, “Did the Supreme Court decision give pro-choice Americans a false sense of security?”  If pro-choice advocates believed this right depended on their vote, would the election turnout been significantly higher?  Would the Republican dominance in state and local elections have been the same absent Roe v. Wade?

We might get the answer to that question in November.

For what it’s worth,
Dr. ESP