NATELSON: Justice Ginsburg’s Possible Incapacity And The Case For Judicial Term Limits

DC: Justice Ruth Bader Ginsburg’s difficulty in carrying out her judicial duties has encouraged informal wagering about whether she can continue until President Trump leaves office. This is in bad taste and overshadows recognition of her outstanding career.

The problem of justices outliving their judicial capacity has recurred throughout U.S. history. But it may be growing more acute, as advances in health care enable physical strength to outlive mental capacity.

We do not yet have a satisfactory mechanism for addressing the issue. No statute forcing justices to leave office would be valid because the Constitution specifies that they “hold their Offices during good Behavior.” That’s a rough translation of the Anglo-Latin formula, “quam diu bene gesserit.” It literally means “so long has he shall have conducted himself well.” Justices serve until their death, retirement, resignation, or impeachment-and-conviction, whichever comes first.

One possible remedy is for family members or professional colleagues to pressure a failing justice into resigning or retiring. Another alternative is impeachment, conviction, and removal from office for “high … Misdemeanors.” In the constitutional context, this is a fiduciary standard, and is broad enough to include negligence or other breach of duty due to incapacity.

But neither pressure nor impeachment are satisfactory remedies. First, neither can be based fully on objective standards of competence. Is Justice Ginsburg better or less able to perform her duties than were Justices William O. Douglas or Hugo Black in their later years? Not only is that question often unanswerable objectively, but personal answers are likely to be colored by political preferences.

Similar political considerations may mar the decision of the justice himself. A jurist who might agree to being replaced by an Obama nominee might hang on to avoid being replaced by a Trump nominee — or vice versa. So there is no guarantee the object of pressure will yield to it.

The Constitution’s requirement that two thirds of senators vote to convict an impeached official offers some protection against arbitrary political action. But Congress has been unwilling to terminate distinguished judicial careers that way: The impeachment-and-conviction process has never been used successfully to remove a Supreme Court justice.

We are left with the alternative of constitutional amendment. But what kind of amendment?  more here

31 Comments on NATELSON: Justice Ginsburg’s Possible Incapacity And The Case For Judicial Term Limits

  1. This is way off subject, but…

    Why can’t President Trump put all of his records under the same umbrella of protection that obamination hid his?

    Obamination set the precedent of hiding things under his presidential ‘executive umbrella’, including Holder!

    The insane rabid dogs of the democrat members of congress, need to be checked-mated and using obamination‘s tactics would be sweet justice.

  2. Simple.
    Make it a requirement that they be able to attend the court, physically for all and any sessions in order for their vote to count.

  3. Now to RBG- Someone needs to have a ‘good will’ visit with this obviously very sick woman.

    I’m beginning to think of the movie DAVE and how they hid the real president who, essentially died and was kept on life support.

  4. I’d better a dollar she is unable to feed or wipe herself.

    I’ve be sending messages to the President, my Rep and my Senators asking for proof she’s able to function or is even alive.

  5. Term limits are a BAD idea if you currently support Trump’s appointment of youngish judges to stablize the court for decades. (Have you not wondered whether there is a reason this is all-in in the media lately?)

    Mandatory retirement ages are a BAD idea if you actually look at the history of who and when has become incapacitated on the court (it’s not particularly age-related — some great very old justices would have to go and some incapacitated in their 60s, 70s would stay.)

    The best solution is for the other justices to acknowledge whether a incapacitated judge is or is able to work. Litigants can request recusal and raise a stink. (So far, no one has.) Would we really care if for a time the most liberal judge is not voting in a case?

    Leave well enough alone. Meddling in this way could lay a precedent for meddling in other ways.

  6. If she votes in any future decisions I’d like to see how her vote was cast and who did the actual casting (presenting) of it.

    Of course, among Democrats, voting while dead is considered valid voting.

  7. If you poke her with a stick and she doesn’t budge,
    She can’t do the work required of a judge.

    You can’t establish legal precedent if you are legally declared a decedent.

    A major part of being on the Supreme Court is,
    not experiencing rigor mortis.

    To rule on the law you must be sure,
    to at least be above room temperature.

    /Jesse Jackson off

  8. The fact that this is a subject of discussion means RBG has failed “quam diu bene gesserit.” .That she refuses to resign is a disservice to her country and the court on which she resides, but she can’t be bothered about any of that; the LAST thing she’s gonna do is let Trump fill her seat.

  9. “Making book” on her eventual demise
    may be in “bad taste” but it is no
    worse than having an incompetent justice insisting they remain in their position for political hackwomanship.

  10. And I’d say actually murdering a Supreme Court Justice to nominate Merrick Garland in a last ditch effort to mold the court for the next generation in Obama’s last year was worse.

    But maybe we all die laying in our neatly made bed, in unwrinkled clothes, with a pillow over our faces and our hands folded after a heart attack.

  11. Her “outstanding career”? If outstanding means criticizing the Constitution, not following it faithfully, and creating legislation from the bench then she’s a Titan!

    It’s pretty obvious she’s either dead or incapacitated, otherwise the leftists would be parading her around to say “look, she’s fine but needs more recovery time”. They would do anything to prevent Trump from replacing her.

  12. Thankfully, Justice Ginsburg’s “outstanding career” is nearly over. Just watch the Socialist-Demographic Party rush Trump’s Impeachment Hearings in order to challenge his right to nominate a replacement for the the world’s most important “Dead Woman Drooling.” This is going to be a great entertainment and educational experience. It won’t be long now.

  13. She needs to undergo a complete physical and Psychological evaluation by and independent medical team/ This BS making a decision based on notes and clerk without hearing the oral arguments and asking her own questions. is NOT how its supposed to work. This is Chief Justice Roberts doing so as to NOT rock the political boat before the 2020 election. if she stays on the court until fall and then retires this puts McConnell in a political box with 2020 being a presidential election year and the Merrick Garland stink. If she does this then the Biden rule takes effect NO supreme court Nominee will be voted on until the 2021. If he does push President trump’s Nominee through in 2020 the DemocRATS will go even more nute (which is fine with me. By keeping Ginsburg voting on cases and Roberts siding with the LIBTARD JUSTICES this keeps the court liberal put another conservative justice in her slot and then it is 5-4 Conservative and the libtards are screwed no matter what Roberts does.

  14. @janitor February 12, 2019 at 8:32 am

    > Mandatory retirement ages are a BAD idea … some great very old justices would have to go and some incapacitated in their 60s, 70s would stay

    “Mandatory retirement” + “60s, 70s” = “would be ALLOWED to stay” !?!?!?!?!

    (Will no SMOD rid me of these meddlesome Boomers!?)

  15. @Sabre22 February 12, 2019 at 1:11 pm

    > This is Chief Justice Roberts doing so as to NOT rock the political boat before the 2020 election.

    If only “collusion” were an impeachable offense…

  16. The Constitution sets no number of justices for the Supreme Court. Technically, President Trump can nominate someone now or 20 people if they keep up this charade. Roberts needs to be removed for enabling this fuckery.

  17. Her “outstanding career”???

    I seem to remember RBG’s nasty little habit of disparaging the American Constitution
    to any foreign audience she had the opportunity to address.


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