Since the court system seems to be the real place policy is made, I thought this is a good question to ponder.
If Obama is reelected, which justices don't make it to the end of the term? Scalia, Thomas, and Kennedy have to be getting old. What odds that we get a change in our 5-4 split?
The same question goes if Romney wins.
Those three are not that old. Not sure why they would not to to hold on for another four years at least.
Is it possible for the SCOTUS to have mostly judges that aren't classified as liberal or conservative? Is it possible to determine constitutionality without being one or the other, in a more impartial manner? I kind of cringe a little when I hear that the conservatives, or liberals, will decide a case.
Ginsburg looks pretty pruney.
Quote from: KRonn on March 27, 2012, 08:35:21 PM
Is it possible for the SCOTUS to have mostly judges that aren't classified as liberal or conservative? Is it possible to determine constitutionality without being one or the other, in a more impartial manner? I kind of cringe a little when I hear that the conservatives, or liberals, will decide a case.
No, because no president will pass up the chance to put someone on the court that is on their team.
That saddens me. I loved The Brethren for the not quite partisan politics of the court and still like the sense of a semi-partisan elite. They may have different views but they're grounded in their philosophies not 'parties' and they're still courteous to one another, I remember reading that one of Scalia's closest friends is one of the arch-liberals. It'd be sad to lose that. I think it's a large part of why the Court's still so respected.
None of that holds for Congress which just seems like trench warfare :(
Quote from: Sheilbh on March 27, 2012, 08:44:44 PM
I remember reading that one of Scalia's closest friends is one of the arch-liberals.
Ginsberg
Quote from: alfred russel on March 27, 2012, 08:39:52 PM
Quote from: KRonn on March 27, 2012, 08:35:21 PM
Is it possible for the SCOTUS to have mostly judges that aren't classified as liberal or conservative? Is it possible to determine constitutionality without being one or the other, in a more impartial manner? I kind of cringe a little when I hear that the conservatives, or liberals, will decide a case.
No, because no president will pass up the chance to put someone on the court that is on their team.
There ought to be laws about who is eligible to sit on the Supreme Court! Er, but then it would likely get challenged in court, all the way to the Supreme Court so they could decide on their own future! :D
Sheesh, we're becoming a banana republic! Appointing judges to do the bidding of the political left or right, not decide based mainly on Constitutional law. ;)
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop. I think the Commerce Clause would be sufficient to empower Congress to enact those limits.
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop. I think the Commerce Clause would be sufficient to empower Congress to enact those limits.
Similar to the FRB terms? Sounds good to me.
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop. I think the Commerce Clause would be sufficient to empower Congress to enact those limits.
:lmfao:
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop.
Why not just put in a mandatory retirement age like we have? :cool:
Quote from: Barrister on March 27, 2012, 09:51:23 PM
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop.
Why not just put in a mandatory retirement age like we have? :cool:
The problem with mandatory retirement age is that it doesn't solve the underlying problem: judges are increasingly being picked by actuarial tables, to make sure that they advance their cause for the longest time possible.
Quote from: Barrister on March 27, 2012, 09:51:23 PM
Why not just put in a mandatory retirement age like we have? :cool:
It maintains the trend to appointing ever younger Supreme Court justices. If they've got a set number of years the parties won't try and choose the brightest mind under 60, but the brightest mind of their side.
That must be why Obama appointed two women judges. Women live longer.
I think it'd be interesting to appoint a non-lawyer justice.
Perhaps someone with just a J.D.
Perhaps someone who is likely to sit for thirty or more years.
Perhaps someone who would follow the Democratic Party in lockstep, or at least promise to.
Perhaps someone who likes Bon Jovi.
Quote from: DGuller on March 27, 2012, 09:53:51 PM
Quote from: Barrister on March 27, 2012, 09:51:23 PM
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop.
Why not just put in a mandatory retirement age like we have? :cool:
The problem with mandatory retirement age is that it doesn't solve the underlying problem: judges are increasingly being picked by actuarial tables, to make sure that they advance their cause for the longest time possible.
No, judges are picked according to their opinion on
Roe v Wade.
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop. I think the Commerce Clause would be sufficient to empower Congress to enact those limits.
Article III begs to differ.
There should be a maximum number of terms on the house and senate
Quote from: 11B4V on March 28, 2012, 09:42:30 AM
There should be a maximum number of terms on the house and senate
I want it to be unlimited with with a required 10 year break between terms. It worked out great for the Roman Republic.
Quote from: Valmy on March 28, 2012, 09:46:04 AM
Quote from: 11B4V on March 28, 2012, 09:42:30 AM
There should be a maximum number of terms on the house and senate
I want it to be unlimited with with a required 10 year break between terms. It worked out great for the Roman Republic.
nice
Quote from: alfred russel on March 27, 2012, 08:30:30 PM
Since the court system seems to be the real place policy is made, I thought this is a good question to ponder.
I disagree with your premise.
Quote from: The Minsky Moment on March 28, 2012, 09:40:51 AM
Quote from: DGuller on March 27, 2012, 09:06:23 PM
I still think that there should be 18 year term limits for Supreme Court justices, staggered 2 years apart. We can Truman in the present ones, to sweeten the deal for the current crop. I think the Commerce Clause would be sufficient to empower Congress to enact those limits.
Article III begs to differ.
:rolleyes: Damn lawyers trying to insert themselves into every debate.
Quote from: Ideologue on March 27, 2012, 10:53:26 PM
I think it'd be interesting to appoint a non-lawyer justice.
Perhaps someone with just a J.D.
Perhaps someone who is likely to sit for thirty or more years.
Perhaps someone who would follow the Democratic Party in lockstep, or at least promise to.
Perhaps someone who likes Bon Jovi.
I don't know. What would he think of air power?
Quote from: alfred russel on March 27, 2012, 08:39:52 PM
Quote from: KRonn on March 27, 2012, 08:35:21 PM
Is it possible for the SCOTUS to have mostly judges that aren't classified as liberal or conservative? Is it possible to determine constitutionality without being one or the other, in a more impartial manner? I kind of cringe a little when I hear that the conservatives, or liberals, will decide a case.
No, because no president will pass up the chance to put someone on the court that is on their team.
Of course, some justices have been found out to not exactly be on the team that the President who appointed them thought that they were on.
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
Quote from: Berkut on March 28, 2012, 08:16:03 PM
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
Not all lawyers are defense attorneys...unless you are using clients in the loosest sense. :D
Quote from: The Brain on March 28, 2012, 01:04:05 PM
Quote from: Ideologue on March 27, 2012, 10:53:26 PM
I think it'd be interesting to appoint a non-lawyer justice.
Perhaps someone with just a J.D.
Perhaps someone who is likely to sit for thirty or more years.
Perhaps someone who would follow the Democratic Party in lockstep, or at least promise to.
Perhaps someone who likes Bon Jovi.
I don't know. What would he think of air power?
Constitutionally mandated.
Yeah I think Berk's being too unfair on lawyers.
Also there's more to being a judge than respecting the law (especially in a common law country), if that's all it was then we'd end up with a really formal legalist system. The other extreme is maybe treating the law in a somewhat cavalier way to deliver a result that's just, the Lord Denning approach (and now I feel like a full law student).
Quote from: Berkut on March 28, 2012, 08:16:03 PM
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
I dunno. Not necessarily. Lawyers, like judges, are supposed to consider all aspects of a case rationally, including/especially that which is unfavorable to their client. This is so that they can advise their client properly. They simply have to be able to pack that up when zealous advocacy is required and comparatively stupid arguments need to be advanced.
The clear solution is to banish it all and declare me your Emperor. I will love you all yet oppress you utterly.
Quote from: Ideologue on March 28, 2012, 08:56:57 PM
Quote from: Berkut on March 28, 2012, 08:16:03 PM
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
I dunno. Not necessarily. Lawyers, like judges, are supposed to consider all aspects of a case rationally, including/especially that which is unfavorable to their client. This is so that they can advise their client properly. They simply have to be able to pack that up when zealous advocacy is required and comparatively stupid arguments need to be advanced.
But again, their primary concern is to be an advocate for their clients - to figure out how to advance their clients cause within the legal system. For them, the goal is all about the desired outcome, not about the law per se.
That doesn't mean they are not operating in good faith by any means- that is how the system is meant to work.
But a judge should not start from a conclusion, then try to figure out how to use the law to support that conclusion or desired outcome. But that is exactly what a lawyer spends their entire career doing.
Quote from: Ed Anger on March 28, 2012, 09:00:48 PM
The clear solution is to banish it all and declare me your Emperor. I will love you all yet oppress you utterly.
Sorry but I think there's an Ohio exclusion. :(
Quote from: Berkut on March 28, 2012, 08:16:03 PM
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
Interestingly some countries (e.g. Germany and I think France) have people who train to be judges right out of law school. So, judges in those countries are exactly what you would want. Interestingly, being a judge is considered less prestigious - they are considered basically civil servants.
I came.
I think there's a distinction between practitioners and theorists (jurists?) too. They're all lawyers but the latter are effectively academics but far more influential than in England (and I guess America).
I don't really understand any civil law system though so I don't know how they work. The idea of an investigating magistrate for example is very weird to me and no matter how may series of Spiral I watch I still don't understand.
Are law professors in E+W paid scandalously exorbitant salaries like they are here?
Quote from: Ideologue on March 28, 2012, 09:56:42 PM
Are law professors in E+W paid scandalously exorbitant salaries like they are here?
I have no idea. I think they're in line with academics in general. I think professors on average earn about double what lecturers do though.
You should ask them. In class.
Actually, if they're paid what normal profs are, I guess that's cool. They're almost universally paid well over six figures here, I believe.
I want to go to judge school.
How does the dairy factory help?
Quote from: Ideologue on March 28, 2012, 10:05:27 PM
You should ask them. In class.
Actually, if they're paid what normal profs are, I guess that's cool. They're almost universally paid well over six figures here, I believe.
Well most law teaching here is done at an undergrad level, so they're in a normal university and they aren't able to charge extortionate fees. So law is less of cash cow for the universities than, say, engineering or science which'll get corporate investors.
In post-grad law schools like mine things could be different, especially in the private sector. But I have very few lecturers or tutors who are actually attached to my university. The majority either travel from another university to teach (generally Oxbridge) or, in a couple of cases, are former practitioners. I imagine all of them get very well remunerated for that, but it's not quite the same as a normal teaching position.
Ah, that's right. :face: Man, I totally forgot that the Langdell Plague didn't cross the ocean. Yeah, they're probably fine.
Quote from: Berkut on March 28, 2012, 09:01:56 PM
But again, their primary concern is to be an advocate for their clients - to figure out how to advance their clients cause within the legal system. For them, the goal is all about the desired outcome, not about the law per se.
That doesn't mean they are not operating in good faith by any means- that is how the system is meant to work.
But a judge should not start from a conclusion, then try to figure out how to use the law to support that conclusion or desired outcome. But that is exactly what a lawyer spends their entire career doing.
No that isn't really true. Much of what a lawyer in private practice does is evaluate and assess the strengths and weaknesses of claims and defenses in an objective way in order to provide useful advice to a client. And if anything, I think advocacy is good preparation for judging because it forces practioners to consider both sides of the issue - both because of the need to anticipate the other side's arguments, but also because over time a lawyer is likely to find him or herself on different sides of the same issue.
As a practical matter, it would be difficult to have judges with no legal training or background at all. Cases like Roe v. Wade and the health care mandate case get a lot of attention, but are far from typical. Much of what judges do is deal with cases that involve teasing out the meaning of IRS regulations, or procedural requirements in bringing ERISA cases, or other very technical kinds of issues. Here's an example: http://www.supremecourt.gov/opinions/10pdf/09-520.pdf
I do agree, however, that it would be desirable to diversify the higher echelons of the federal bench by appointing people with a broader array of experience. It used to be fairly common to see appointments of professional politicians to the Supreme Court - like Earl Warren. A few years back, Orrin Hatch was mentioned as a possible appointee to the Court, and I think he would have been a very interesting selection. But it didn't happen because the trend now is to appoint only sitting judges, and preferably those who have decided as few controversial cases as possible.
Quote from: Berkut on March 28, 2012, 08:16:03 PM
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
You watch too much tv.
Quote from: Berkut on March 28, 2012, 08:16:03 PM
I was thinking today that lawyers are uniquely ill suited to become judges.
They've spent their entire professional careers with an mission of almost exactly the opposite of what a judge is supposed to think about in regards to the law. A judge should respect the law first and foremost, but a lawyer's job is to figure out how to use the law to serve their clients interests.
This is exactly what we DO NOT want a judge to do. A lawyer starts from the perspective that they need to figure out how to present and interpret the law to achieve a desired outcome. While we expect judges to reverse that completely.
That isn't always how it works for judges. That's why when it comes to litigation, the ability to create a convincing story
out of the facts is often more important than knowing the minutae of the law. The idea is to convince the judge you are 'in the right' and this makes him or her more likely to FIND a way that your desired outcome is reached.
Quite often the laws can be interpreted in more than one way, given a certain factual matrix. Some interpretations lead to unpleasant results. Convince the judge that your opponent's interpretation leads to a bad result and your case is more than half won. It is unusual to have a situation in which binding precedent absolutely compells a judge to adopt what he or she considers an inequitable result, with no wriggle room possible.
This is why "bad facts make bad law" - a judge, wanting to achieve a certain result in an odd factual matrix, creates a precedent that other judges have to deal with in quite different situations. Collect enough such inconsistencies, and you are off to an appellate court to have the whole matter dealt with one way or another. A supreme court's job is to 'set the pattern' for potential future cases - to attempt to create precedent that is unlikely to be "bad law" in wildly different situations.
Hence, wide litigation experience is going to be desireable.