Category: Law

There’s a proposal afoot to set up term limits for Supreme Court justices.

READ ALL ABOUT IT.

The idea is that Congress should re-define by statute (not by Constitutional amendment) how the office of Supreme Court justice works so that, even though they would retain lifetime appointments to the judiciary, they wouldn’t be serving on the Supreme Court that whole time. They’d be rotated off the Court to other positions as federal judges.

Thus every president would get to appoint a new justice every two years and since everybody would know that he’s be term limited on the Court, it would help to de-politicize Supreme Court appointments and we’d all be better off. Right?

I’m am cool to this idea.

First, there’s a question in my mind about whether the scheme would itself be constitutional. The Constitution says:

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 [Article III, Section 1].

The way I read that, it says "The Judges . . . of the supreme . . . Court[], shall hold their Offices during good Behavior." If I’ve been appointed to an office on the Supreme Court (hypothetically speaking), then it seems ot me that I retain that office (i.e., the one on the Supreme Court) as long as I’m on good behavior, which means "for life" as long as I don’t get impeached. You can’t rotate me off to some other judgeship, at least that’s how I’d read it if I were a power-hungry Robed Master out to impose my will on the populace.

So I don’t know that the Court would buy the redefinition-of-office-by-statute rigamarole, in which case a constitutional amendment would be required.

That ain’t gonna happen.

We’ve got three branches of government and conservatives control two of them by fairly consistent, if still thin, majorities. Since the reign of History’s Greatest Monster, American political culture has taken a trend to the right, and that is putting the squeeze on 1960s style liberalism. If the trend continues, as liberals fear and conservatives hope, the courts will be the last bastion of liberalism, the last vehicle for imposing liberal policies on the U.S. people. That means that liberals will need the courts more and more and–as long as the liberal judicial culture is maintained–there will be no consensus forming on the liberal side for a Constitutional amendment to weaken the power of judges by term limiting them.

Now, a generation from now, after conservatives have been able to put their guys on the courts and the liberal-appointed guys have died off, such a consensus might develop, but I don’t see it happening until then.

Further, I don’t think that this gets at the real heart of the problem. The Court was able to conduct itself with substantial (if not perfect) judicial restraint for a century. It was only in the second American century that things went to hell. Court appointments weren’t heavily politicized until recently because the Court was staying out of politics (for the most part).

But when Earl Warren (History’s Greatest Judicial Monster) was appointed to the Court, things changed in a big way. The Court started to subvert the democratic process to an unprecedented degree. As long as liberals were in control of the legislature and (sometimes) the presidency, nominations to the Court didn’t become hyper-political events. But when the liberals started losing control of the legislature and the presidency, things got much more political very quickly as the last remaining liberal arm of government was in jeopardy.

That’s the real reason the fights have gotten political: The Court has been injecting itself too much into the business of politics. By politicizing its actions, the Court has politicized the nomination process.

It thus seems to me that merely term-limiting Justices won’t fix the problem. Term limits for legislators (those that have them) doesn’t stop their elections from being politicized, because once elected they do politics. Term-limited Justices would continue to have politicized confirmations as long as they’re goin to do politics once they get on the Court.

The real solution, therefore, would be to de-politicize the Court by de-politicizing its behavior.

How do you do that?

By nominating and confirming Justices (and other judges) who are originalists, who are willing to go with what the law says even if they don’t like it.

That’s not going to happen if liberals have their way, which means that fights will continue to be political until the conservative trend in American politics has gone on long enough that there are enough conservative legislators to confirm enough originalists to the courts that their behavior becomes de-politicized again.

I don’t think there’s a quick fix on this one.

What is called for is a principled commitment to originalism and a growth of the conservative base. If the Republicans aren’t up for that, I’m sure a new party can be founded that is.

There’s a proposal afoot to set up term limits for Supreme Court justices.

READ ALL ABOUT IT.

The idea is that Congress should re-define by statute (not by Constitutional amendment) how the office of Supreme Court justice works so that, even though they would retain lifetime appointments to the judiciary, they wouldn’t be serving on the Supreme Court that whole time. They’d be rotated off the Court to other positions as federal judges.

Thus every president would get to appoint a new justice every two years and since everybody would know that he’s be term limited on the Court, it would help to de-politicize Supreme Court appointments and we’d all be better off. Right?

I’m am cool to this idea.

First, there’s a question in my mind about whether the scheme would itself be constitutional. The Constitution says:

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 [Article III, Section 1].

The way I read that, it says "The Judges . . . of the supreme . . . Court[], shall hold their Offices during good Behavior." If I’ve been appointed to an office on the Supreme Court (hypothetically speaking), then it seems ot me that I retain that office (i.e., the one on the Supreme Court) as long as I’m on good behavior, which means "for life" as long as I don’t get impeached. You can’t rotate me off to some other judgeship, at least that’s how I’d read it if I were a power-hungry Robed Master out to impose my will on the populace.

So I don’t know that the Court would buy the redefinition-of-office-by-statute rigamarole, in which case a constitutional amendment would be required.

That ain’t gonna happen.

We’ve got three branches of government and conservatives control two of them by fairly consistent, if still thin, majorities. Since the reign of History’s Greatest Monster, American political culture has taken a trend to the right, and that is putting the squeeze on 1960s style liberalism. If the trend continues, as liberals fear and conservatives hope, the courts will be the last bastion of liberalism, the last vehicle for imposing liberal policies on the U.S. people. That means that liberals will need the courts more and more and–as long as the liberal judicial culture is maintained–there will be no consensus forming on the liberal side for a Constitutional amendment to weaken the power of judges by term limiting them.

Now, a generation from now, after conservatives have been able to put their guys on the courts and the liberal-appointed guys have died off, such a consensus might develop, but I don’t see it happening until then.

Further, I don’t think that this gets at the real heart of the problem. The Court was able to conduct itself with substantial (if not perfect) judicial restraint for a century. It was only in the second American century that things went to hell. Court appointments weren’t heavily politicized until recently because the Court was staying out of politics (for the most part).

But when Earl Warren (History’s Greatest Judicial Monster) was appointed to the Court, things changed in a big way. The Court started to subvert the democratic process to an unprecedented degree. As long as liberals were in control of the legislature and (sometimes) the presidency, nominations to the Court didn’t become hyper-political events. But when the liberals started losing control of the legislature and the presidency, things got much more political very quickly as the last remaining liberal arm of government was in jeopardy.

That’s the real reason the fights have gotten political: The Court has been injecting itself too much into the business of politics. By politicizing its actions, the Court has politicized the nomination process.

It thus seems to me that merely term-limiting Justices won’t fix the problem. Term limits for legislators (those that have them) doesn’t stop their elections from being politicized, because once elected they do politics. Term-limited Justices would continue to have politicized confirmations as long as they’re goin to do politics once they get on the Court.

The real solution, therefore, would be to de-politicize the Court by de-politicizing its behavior.

How do you do that?

By nominating and confirming Justices (and other judges) who are originalists, who are willing to go with what the law says even if they don’t like it.

That’s not going to happen if liberals have their way, which means that fights will continue to be political until the conservative trend in American politics has gone on long enough that there are enough conservative legislators to confirm enough originalists to the courts that their behavior becomes de-politicized again.

I don’t think there’s a quick fix on this one.

What is called for is a principled commitment to originalism and a growth of the conservative base. If the Republicans aren’t up for that, I’m sure a new party can be founded that is.

Supergenius Thomas Sowell points out a prominent national irony.

EXCERPTS:

It is painfully ironic that we should be promoting the spread of democracy abroad when democracy is shrinking at home. Over the years, the outcomes of our elections have meant less and less, as judges have taken more and more decisions out of the hands of elected officials.

Judges have imposed their own notions on everything from school administration to gay marriage, and have ordered both state and federal agencies to spend billions of dollars to carry out policies favored by the judges or have even ordered a state legislature to raise taxes.

While people in various countries in the Middle East are beginning to stir as they see democracy start to take root in Iraq, our own political system is moving steadily in the opposite direction, toward rule by unelected judicial ayatollahs, acting like the ayatollahs in Iran.

One way to stop the continuing erosion of the American people’s right to govern themselves would be to appoint judges who follow the great Supreme Court Justice Oliver Wendell Holmes’ doctrine that his job was to see that the game is played by the rules, "whether I like them or not."

An aging Supreme Court means that there is now a perhaps once-in-a-lifetime opportunity to stop the erosion of democratic self-government by putting advocates of judicial restraint, rather than judicial activism, on the federal courts, including the Supreme Court.

Senate Democrats understand how high the stakes are. But do the Republicans?

GET THE REST.

REALCLEARPOLITICS THINKS JUDICIAL ACTIVISM IS ENTERING A PERFECT STORM.

Excerpt:

After six decades of expansion, the tendency of judges to impose their preferences on society, rather than simply interpret the law as written, may have reached its apogee. Judicial activism, as this writing of law from the bench is known, faces a confluence of forces which promise relief for the principles of Constitutionalism, and for the American people they protect. The trend of judicial activism morphing into judicial tyranny faces a perfect storm.

REALCLEARPOLITICS THINKS JUDICIAL ACTIVISM IS ENTERING A PERFECT STORM.

Excerpt:

After six decades of expansion, the tendency of judges to impose their preferences on society, rather than simply interpret the law as written, may have reached its apogee. Judicial activism, as this writing of law from the bench is known, faces a confluence of forces which promise relief for the principles of Constitutionalism, and for the American people they protect. The trend of judicial activism morphing into judicial tyranny faces a perfect storm.

A reader writes:

This is from Newman at Carnegie Mellon U.

6. Holy Orders

In the Latin Rite, the current discipline is for only non-married Catholics may be ordained priests; however, converts to the Catholic Faith who are married may later become ordained because the Church recognizes their marriage as valid and does not want to deny them the opportunity to serve the Church as a priest if they had previously joined in marriage in another Church before knowing the fullness of the Catholic Faith.

Is this totally confused, or can I, married as a Protestant who later came to the Catholic Church (along with my wife who started Baptist), start going to Vocation retreats and consider ordination as a Catholic priest? This is news to me.

What you read is totally confused. You, married as a Protestant who later came to the Catholic Church (along with your wife who started Baptist) should not start going on vocational retreats and considering ordination as a Catholic priest. I’m sure that’s not news to you.

What the origin of the confusion is is this: In recent decades the Holy See has allowed certain married Protestant ministers to be ordained as Catholic priests as a special pastoral provision. This provision is not available to ordinary rank-and-file married Protestants who convert. It is specifically (and then only uncommonly) for those who have already functioned as ministers before joining the Latin rite of the Church.

Hope that helps clarify matters!

No, really! I am!

I’ve been duly deputized! Put another way: I done been deputed!

I am not, however, a deputy sheriff or marshal.

I’m a deputy commissioner . . . of marriages.

Here’s the story on that:

Recently a relative and the relative’s fiancee (fiance?) asked me to marry them.

Neither the relative nor the fiance (fiancee?) is Catholic, so there is no requirement of Catholic form and it’s a first marriage for both, so it is presumptively valid in the eyes of the Church.

I was honored to be asked, of course, and you don’t say no to a relative lightly when they ask you something as personal as this, so I also checked and verified that there is no canonical barrier (and there’s not) to a Catholic layman performing such a service under these conditions. In fact, many Catholic lay people are commissioners of marriage working in county courthouses all across the country performing civil but–unless there’s an impediment–valid marriages.

Here’s how that gets applied to me: It turns out that California marriage law is crazy (no, really!) and basically anybody can perform marriage ceremonies.

F’rinstance: If you are an ordained minister of any denomination–even a shaman, a witchdoctor, or a minister of a phony Internet denomination made up purely so people can get tax breaks and marry people and call themselves ministers–then you can do marriages in California. You don’t have to be a resident of California. You don’t even have to tell California that you’re coming in to do a marriage. California maintains no central registry of persons authorized to perform marriages.

Since I’m not an ordained minister (not even of a phony Internet denomination), I’m not going that route, of course.

But wait, there’s more!

If you’re Joe Blow, you can go down to the county courthouse, fill out a form, pay a filing fee, and get appoitned a deputy commissioner of marriage so that you can perform one, specific marriage (whose particulars you describe on the form).

So that’s what I did.

And, as of next week, I’m going to go where (a few) Catholic lay people have gone before and perform a marriage.

I do get a gold-star, though. It’s the seal on the form commissioning me:

Here’s the appointing document itself in case you’re curious. Figgered most folks have never seen such a thing (I certainly hadn’t). Click to enlarge it.

I’m particularly interested in the fact that it goes on at such length to say the county won’t cover injuries caused to you in the act of performing the marriage and that it also won’t cover injuries you cause others.

Guess there are still more shotgun weddings than I thought there were or something.

No, really! I am!

I’ve been duly deputized! Put another way: I done been deputed!

I am not, however, a deputy sheriff or marshal.

I’m a deputy commissioner . . . of marriages.

Here’s the story on that:

Recently a relative and the relative’s fiancee (fiance?) asked me to marry them.

Neither the relative nor the fiance (fiancee?) is Catholic, so there is no requirement of Catholic form and it’s a first marriage for both, so it is presumptively valid in the eyes of the Church.

I was honored to be asked, of course, and you don’t say no to a relative lightly when they ask you something as personal as this, so I also checked and verified that there is no canonical barrier (and there’s not) to a Catholic layman performing such a service under these conditions. In fact, many Catholic lay people are commissioners of marriage working in county courthouses all across the country performing civil but–unless there’s an impediment–valid marriages.

Here’s how that gets applied to me: It turns out that California marriage law is crazy (no, really!) and basically anybody can perform marriage ceremonies.

F’rinstance: If you are an ordained minister of any denomination–even a shaman, a witchdoctor, or a minister of a phony Internet denomination made up purely so people can get tax breaks and marry people and call themselves ministers–then you can do marriages in California. You don’t have to be a resident of California. You don’t even have to tell California that you’re coming in to do a marriage. California maintains no central registry of persons authorized to perform marriages.

Since I’m not an ordained minister (not even of a phony Internet denomination), I’m not going that route, of course.

But wait, there’s more!

If you’re Joe Blow, you can go down to the county courthouse, fill out a form, pay a filing fee, and get appoitned a deputy commissioner of marriage so that you can perform one, specific marriage (whose particulars you describe on the form).

So that’s what I did.

And, as of next week, I’m going to go where (a few) Catholic lay people have gone before and perform a marriage.

I do get a gold-star, though. It’s the seal on the form commissioning me:

Here’s the appointing document itself in case you’re curious. Figgered most folks have never seen such a thing (I certainly hadn’t). Click to enlarge it.

I’m particularly interested in the fact that it goes on at such length to say the county won’t cover injuries caused to you in the act of performing the marriage and that it also won’t cover injuries you cause others.

Guess there are still more shotgun weddings than I thought there were or something.

Y’know how those rascals in Washington are all twisted around whether or not judicial nominees should be rendered filibuster-proof in a move called "the nuclear option" in an attempt to make it sound more extreme than it is?

I’m all for that.

The use of filibusters to thwart judicial nominees is a new thing in American politics, and I see nothing wrong with using the tactic to prevent it from happening.

In fact, I’m rather cool towards filibusters as a whole: The idea is not in the U.S. Constitution. In fact, the Senate didn’t originally have filibusters. The institution was created when the Senate accidentally deleted a measure from its rules that allowed the closing of debates that had gotten out of hand. It was years before folks got around to applying the loophole to thwart the passage of legislation supported by the majority and, by extension, the will of the people.

Consequently, I’m quite open to the idea of getting rid of the filibuster altogether. U.S. law already has lots of safeguards built into it to protect the interests of groups in the minority (the Bill of Rights being a notable example), and the use of cheap parliamentary tactics to further thwart the will of the majority doesn’t seem quite cricket to me. If there need to be more measures to protect the interests of those whose legislators are not a majority, let straightforward measures be enacted to protect them. Let’s not rely on unworthy phony debates that aren’t real debates at all but simply obstructionism (and which, these days, don’t even literally go on all night).

Thing is: While it may (under current rules) take 60 votes to end a filibuster, the filibuster rule itself can be scrapped by only a simple majority.

The Constitution provides only a single method – the constitutional amendment process – to entrench a rule against repeal by a majority. If Democrats were correct that rules can be insulated from majority amendment, a bare majority in each House could have passed the Bill of Rights and made it our fundamental law by declaring that only unanimous votes by both Houses could pass legislation violating its principles. The Democratic view also conflicts with a principle known since before the framing of the Constitution that one legislature cannot bind subsequent legislatures.

The . . . constitutionally correct view is that the Senate can choose to retain the filibuster rule, but that a majority must be able to change it. The Senate can thereby exercise its full constitutional authority to fashion rules of procedure but past majorities of the Senate cannot put current majorities in a procedural straitjacket. Thus, a change in the filibuster rule by a majority is not a "nuclear" option but instead the constitutional option – the route contemplated by our founding document.

That’s a quotation from

THIS INTERESTING STORY ON "THE CONSTITUTIONAL OPTION."

Or you can go into

FASCINATING MIND-NUMBING DETAIL ON THE HISTORY OF THE FILIBUSTER AND THE CONSTITUTIONAL OPTION. (WARNING! Evil file format [.pdf]!)

A reader writes:

In a conversation on-line with fellow Catholics, I was told that attending liturgy at an Orthodox church would not fulfill your Sunday obligation. Now, I was a bit surprised. I hadn’t planned to spend my Sundays down at the local Greek Orthodox church, but I’d thought that the reason one wouldn’t do that was because well, one’s a Catholic, and you shouldn’t be attending a schismatic church. But since the liturgy at an Orthodox church is the Mass, would attendance fulfill your Sunday obligation if you were in a position where you couldn’t get to a Catholic Church?

Under current law, Eastern non-Catholic liturgies do not fulfill the Sunday obligation. The Code of Canon Law provides that:

Can.  1248 §1. A person who assists at a Mass celebrated anywhere in a Catholic rite either on the feast day itself or in the evening of the preceding day satisfies the obligation of participating in the Mass.

This means that to fulfill one’s Suday obligation one needs to attend a Catholic Mass (either that of the Roman church or one of the Eastern churches sui iuris in communion with Rome, such as the Maronites, the Chaldeans, etc.). It will not suffice if it is merely a valid celebration of the Eucharist or even if it is an almost identical liturgy being used in a non-Catholic church.

Confusion on this point was raised by the 1967 Directory on Ecumenism, which allowed Catholics to occasionally fulfill their Sunday obligation with an Eastern non-Catholic liturgy, but this was later suppressed. It may be argued that the release of the 1983 Code (quoted above) suppressed it since it makes no exceptions after using the word "Catholic." (If it meant to allow Eastern non-Catholic liturgies it should have said something like "A person who assists at a Mass celebrated anywhere in a church where the sacrament of the Eucharist is valid satisfies the obligation of participating in the Mass."

Even if it were not suppressed by the 1983 Code itself, it definitely was suppressed by the 1993 Directory for the Application of Principles and Norms on Ecumenism, which states:

115. Since the celebration of the Eucharist on the Lord’s Day is the foundation and centre of the whole liturgical year, Catholics—but those of Eastern Churches according to their own Law—are obliged to attend Mass on that day and on days of precept. It is not advisable therefore to organize ecumenical services on Sundays, and it must be remembered that even when Catholics participate in ecumenical services or in services of other Churches and ecclesial Communities, the obligation of participating at Mass on these days remains.

The reader then writes:

Are there any other circumstances where it would be all right to fulfill your Sunday obligation in that manner?

No, it doesn’t work quite like that. If you really can’t reasonably get to a Catholic Mass then your Sunday obligation is simply in abeyance. You don’t have to go. You could go to an Eastern non-Catholic liturgy but it would not be in fulfillment of your Sunday obligation because on that Sunday you are simply not obligated.

For such circumstances the Code of Canon Law does have a recommendation (not an obligation) to make:

Can.  1248 §2. If participation in the eucharistic celebration becomes impossible because of the absence of a sacred minister or for another grave cause, it is strongly recommended that the faithful take part in a liturgy of the word if such a liturgy is celebrated in a parish church or other sacred place according to the prescripts of the diocesan bishop or that they devote themselves to prayer for a suitable time alone, as a family, or, as the occasion permits, in groups of families.