[update below] [2nd update below] [3rd update below]
Ruth Marcus, a Washington Post writer I usually don’t pay attention to, has a column today on Rick Perry’s “2010 Tea Party-steeped manifesto, ‘Fed Up!,’ [that] makes George Bush look like George McGovern.” It’s pretty frightening stuff. Particularly as Perry leads the GOP pack in the polls and that certain Very Serious Pundits—to paraphrase Paul Krugman—say could be our next president. It just gets worse and worse for the Republican party. During the Reagan years Richard Nixon started to look not so bad. And during the Bush-Cheney regime, one became nostalgic for Reagan. And now with the Tea Partiers, Reagan looks like a centrist and Nixon a liberal. The wacko Michele Bachmann makes even Sarah Palin look moderate (Ryan Lizza’s New Yorker article is a must read, in case anyone missed it).
Back to Perry, in her list of his political horrors, Marcus has this
…Perry’s views on the role of judges may be the most alarming part of “Fed Up!,” given a president’s ability to shape the Supreme Court for decades to come… Perry’s ideas range from wrongheaded to terrifying: requiring federal judges to stand for reappointment and reconfirmation; and letting Congress override the Supreme Court with a two-thirds vote in both houses. This “risks increased politicization of judicial decisions,” Perry allows, “but also has the benefit of letting the people stop the court from unilaterally deciding policy.”
Now, I actually think this is not a bad idea, not all of it at least. The US Constitution has some important flaws, one of which is the lifetime appointment of Supreme Court and federal judges (other flaws include the electoral college and structure of the Senate). To my knowledge the US is the only democracy which does this (e.g. Constitutional Council judges in France are appointed for single nine year terms; Israeli Supreme Court judges have a mandatory retirement age of 70). Given the power of the Supreme Court, its status as an equal branch of government with the executive and legislative, and its effective policy-making role, I can think of no justification for appointing unaccountable justices who serve for decades on end. This seriously undermines both the principle and spirit of representative democracy. It would be eminently reasonable for justices to be appointed to, say, 12-year renewable terms (and with a minimum age of 50, assuring that only those with a long track record in law or politics would qualify), that would be staggered (with nominations coming up every two or three years), and with no possibility of a Senate filibuster. Among other things, this would help remove the political polarization over court nominations, as it would make it difficult to impossible to lock in ideologically slanted majorities for indefinite periods (and also make it nearly impossible for justices like Clarence Thomas—who may end up serving for fifty years—to wreak havoc). It would also offer the possibility of short order reversals of insane Court rulings, such as Citizens United v. Federal Election Commission. Such a change is, of course, not likely to happen but I’m surprised that it hasn’t been proposed in the past (unlike the many calls over the years to abolish the electoral college, which is also a near impossibility).
As for Perry’s proposal for a Congressional override of Supreme Court rulings, it would mainly be symbolic, as I doubt it would ever happen (or would have even for Brown v. Board of Education), as Supreme Court rulings are rarely way out of line with the center of gravity of public opinion (or the direction in which public opinion is moving). I don’t have a view on this one. It at least merits debate.
UPDATE: Jonathan Chait of TNR shares my view of “Rick Perry’s smart court reform.” He also provides details of Perry’s ideas, one of which is staggered terms, which I proposed above. (September 1)
2nd UPDATE: Gail Collins agrees with me about the Republicans getting worse. In her column (September 7) on the GOP candidates debate she concludes
The debate was at the Reagan library, and no matter what you think of Ronald Reagan, this crew makes him look good. It is the genius of the Republican Party in recent decades that it continually selects candidates who make the ones who went before appear better. Remember how great George H.W. Bush seemed once we’d lived with his son for a while? And I have a strong suspicion that whoever the nominee is this time will make us yearn for the magic that was W.
If Rick Perry is elected next year I shudder to think of the crop of Republican candidates for the 2020 election.
3rd UPDATE: Sally Kohn in The American Prospect says that “by today’s Tea Party standards, [Ronald Reagan] would have been a Leninist-Marxist-socialist America hater.” (September 9)