Credit Image: © Jerry Mennenga/ZUMA Wire
As a federal judge, I am duty bound not to play politics. However, when a politician makes an extreme proposal to amend the Constitution and fundamentally alter and harm the federal judiciary and the Supreme Court, I have the right as a federal judge, and dare I say the duty, to respond to the proposal.
Senator, and Presidential candidate, Ted Cruz has recently stated,
I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.
Ted Cruz, Constitutional Remedies to a Lawless Supreme Court, National Review Online (June 26, 2015) (“This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government. . . . . Both decisions were judicial activism, plain and simple. Both were lawless.”).
Ted Cruz is a brilliant and well-educated man and former law clerk to Chief Justice Rehnquist. If he is seriously suggesting the following, and it unfortunately appears that he is serious, Cruz is demonstrably unfit to become President despite his resume:
[T]he Framers underestimated the justices’ craving for legislative power, and they overestimated the Congress’s backbone to curb it. It was clear even before the end of the founding era that the threat of impeachment was, in Thomas Jefferson’s words, “not even a scarecrow” to the justices. Today, the remedy of impeachment — the only one provided under our Constitution to cure judicial tyranny — is still no remedy at all. A Senate that cannot muster 51 votes to block an attorney-general nominee openly committed to continue an unprecedented course of executive-branch lawlessness can hardly be expected to muster the 67 votes needed to impeach an Anthony Kennedy.
The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.
. . .
But, sadly, the Court’s hubris and thirst for power have reached unprecedented levels. And that calls for meaningful action, lest Congress be guilty of acquiescing to this assault on the rule of law.
And if Congress will not act, passing the constitutional amendments needed to correct this lawlessness, then the movement from the people for an Article V Convention of the States — to propose the amendments directly — will grow stronger and stronger.
There are at least three reasons why this proposal is wacko.
First, Mr. Cruz’s attack on the Framers–for allegedly underestimating “the justices craving for legislative power” and over estimating the “Congress’s backbone to curb it”–reflects a “Ted Cruz knows best mentality.” It ignores the debate among the brilliant Founders regarding the power of the judiciary. That debate was held and a result was reached. For Cruz to propose that he alone knows better and he alone knows more than the Founders reflects an ego the size of Texas. If we truly cherish what went on in Philadelphia, then the momentary political machinations of a right-wing ideologue ought be rejected out of hand. History has proven, as I next discuss, that the lifetime tenure provision of the Constitution adopted by our Founders, after serious debate on the subject, is the best way to insure we have a Court that can check the political branches of the federal government, that we have a Court that can check the 50 states, and, when necessary to protect the rights of the minority, that we have a Court that can check the majority. A life tenured system of Justices is a brilliant and thoughtful method of balancing power in this federal republic. Ted Cruz should know better than to reject the wisdom of the Founders.
Second, while Cruz is enraged about the gay marriage and the ACA decisions he ignores what lifetime tenure has brought us over a much broader expanse of time. Blacks have been freed from segregated schools, Nixon was instructed that no President is above the law, and each person in Texas has the right to have his or her ballot counted equally because of the Court’s “one man/one vote” declaration. Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.
Finally, George Will, a thoughtful person with unquestioned conservative credentials, suggests that Ted Cruz has become “unhinged.” Will argues convincingly that judicial elections will make the Supreme Court more political rather than less political.
Will makes his persuasive argument this way:
Cruz’s idea is congruent with the 1912 proposal of another rambunctious Ted, former president Theodore Roosevelt. Running as a full-throated Progressive (against another progressive, Democrat Woodrow Wilson, and the conservative Republican president and future chief justice William Howard Taft), TR advocated not just the recall of judges but also “the review by the people” of “certain” judicial decisions. TR embraced the core progressive belief that the ideal of limited government and hence the reality of the separation of powers are anachronisms.
It is, therefore, especially disheartening that Cruz, who clerked for Chief Justice William Rehnquist and who is better equipped by education and experience to think clearly about courts, proposes curing what he considers this court’s political behavior by turning the court into a third political branch. Imagine campaigns conducted by justices. What would remain of the court’s prestige and hence its power to stand athwart rampant executives and overbearing congressional majorities? Sixteen months before the election, some candidates are becoming too unhinged to be plausible as conservative presidents.
George F. Will, Some GOP candidates becoming unhinged over gay marriage ruling, Washington Post (July 1, 2015). (Emphasis added by Kopf.)
Mr. Cruz seeks to sacrifice the Supreme Court upon the altar of an extreme right-wing ideology. That makes him unsuited to become President.