Reading the very much liberal New Yorker on a regular basis, I saw the title “Rick Perry’s Good Idea” and expected snark. And there was a little bit, mostly about his impossible-to-satire failed campaign. But the “good idea” referenced in the title really does seem like a good idea, at least given the thought I’ve put into it so far. There are probably downsides and pitfalls I haven’t considered. But I really think his proposal could restore functionality to the Supreme Court, and maybe reduce some of the partisanship.
Fortunately, the op ed piece is available online.
Here’s an excerpt with an outline of the idea.
Yet there was more to Perry’s campaign than blunders. It was also a campaign of “ideas.” Few of them were good, alas. For example, reducing the salaries of members of Congress by half, to eighty-seven thousand dollars a year, is not a good idea. Neither is a tax cut that would net the richest one per cent more than five thousand dollars a week and the unrichest twenty per cent less than two dollars and fifty cents. Nor is there much to be said for reinvading Iraq, reinstituting torture, or unconditionally supporting new and bigger Israeli settlements in the West Bank. Yet at least one idea Perry embraced was, and is, very good indeed. It involves the Supreme Court. The Governor may be a little shaky about the Court’s names and numbers, but he knows what to do about it. Here’s the proposal, straight from his now moribund campaign Web site:
A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices.
This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year?
Read more http://www.newyorker.com/talk/comment/2012/01/30/120130taco_talk_hertzberg#ixzz1kgrVczzx
There’s more in the article.
Conservatives might resist the idea right now, but in 10 years they might be singing a different tune.
There are some downsides. Maybe there would be more overturning of previous decisions, but then maybe courts, knowing that there’s a little more fluidity, would be more cognizant of making decisions which will last and therefor less partisan.
What to you think?

10 comments
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January 29, 2012 at 8:55 am
Joel Mielke
Perry is a drooling idiot, but it was surprising to me that his advisors suggested that he adopt this idea at a time when the extreme right controls the Supreme Court and probably will for the next fifteen years. The proposal is worth considering, but alas, good ideas do not fare well at the federal level in this country.
January 29, 2012 at 12:22 pm
Eric Kirk
But it really wouldn’t go into effect until this court has died off, and even Perry’s people have to understand that they won’t hold power forever.
January 29, 2012 at 5:29 pm
Not A Native
Why be “thankful” for an online reference, Eric? Have you forgotten you think referencing something that isn’t online is as good as one that’s online?
Oh yeah, now I remember. When its not ‘popular’, you’ll change your opinion in a New York second. But you’ll never acknowledge it.
As to this thread, WGAF?
January 29, 2012 at 6:39 pm
moviedad
Hey I got a good idea too; how about we arrest John Roberts pending an investigation into his ties to corporate American.
January 29, 2012 at 6:40 pm
moviedad
Americ[A]
January 30, 2012 at 9:28 am
Anonymous
More intellectual masturbation for e.
Not a lot of takers on this one.
January 30, 2012 at 6:14 pm
Eric Kirk
No, not a lot of takers, which surprises me. I didn’t think the subject was particularly “intellectual,” but in any case it’s apparently of little interest in these parts.
Chess players, however, took a little more interest.
http://www.playtheimmortalgame.com/board/showthread.php?subject=Rick_Perry_actually_had_a_good_idea&threadid=144834
January 30, 2012 at 8:34 pm
Joel Mielke
We’ve been really lucky with Republican nominees from Eisenhower to Nixon, but after David Souter was appointed to replace Brennan, Republican nominees have been complete whack jobs. This is an idea worth considering.
January 30, 2012 at 10:13 pm
Not A Native
But Joel, this idea would ensure every Republican president would make two nominations. This idea would encourage people to time bringing cases to the Court. Right now, timing isn’t generally possible because of justices’ long terms.
Isn’t it better to put energy into electing saner representatives than trying to reactively hamstring the operations of Government with processes that promote partisan “gaming the system”? For my part, I think stability of legal precedents is preferable to attempting to engineer particular legal results.
January 30, 2012 at 11:32 pm
Anonymous
The present system is much more susceptible to engineering particular legal results. The Republicans have been doing it for thirty years now.