Why do lifetime appointments exist? In the United Kingdom we have monarchs appointed for life (by god if you believe that sort of thing) and some of our political representatives – Peers – are also appointed for life; but personally, I struggle enormously to comprehend what possible justification there can be for why this should be… What is it that means once you are appointed, your qualifications/ eligibility should never more be called into question?
In the United States of America at the moment, the nomination of Judge Brett Kavanaugh to the Supreme Court is under evaluation – amidst accusations of sexual abuse and sexual misconduct. An important factor for consideration in all of this is that the appointment of a Supreme Court Judge in the United States of America is for life – there is no way to remove a sitting Supreme Court Judge in the United States of America other than through impeachement.
Judge Brett Kavanaugh was born in 1965 – and so as a 53 year old, he in all likelihood, has a great many years ahead of him serving on the Supreme Court – the oldest current appointee (Justice Ruth Bader Ginsburg) is over 85 years old, which if matched would mean that Brett Kavanaugh would serve upwards of 30 years.
I appreciate the supporting argument for lifetime appointments which maintains that such positions should be free from the machinations of daily politics – judges should not be subject to the whims and fancies of transient political niceties or campaigns… However, the selection and nomination process of Brett Kavanaugh, I think, belies the naivety of that particular argument; showing that the process can simply operate in reverse – whereby a judge is chosen for the judgements they are likely to make, rather than the judge making particular decisions in order to be chosen!
The lifetime nature of this appointment has perhaps always been contentious – the death of Justice Antonin Scalia in 2016 sparked the most recent battle for a nominee, and was one which saw Republican Senators refuse to hear the nomination of Judge Merrick Garland because it was an election year. A appointment was finally made under President Donald Trump some 10 months later – with the appointment of Justice Neil Gorsuch, who changed the balance of power in the Supreme Court in favour of the conservative side. The nomination of Judge Kavanaugh, who is also considered to be politically very conservative, will ‘weight’ the Supreme Court even further towards conservatism for the foreseeable future.
There is great fear that given the political views of these most recent nominees, there could be a devastating impact on many social issues, notably the question of abortion and gay marriage. (Of course, conservatives might well point to similar and opposing fears when the Supreme Court favours more liberal views.) In the light of the magnitude of response from those who fear being subject to political and judicial bias from this outcome; it is surely appropriate to question the process that allows such power to be handed out.
The appointment of a person to a position for life seems to presuppose that the person being appointed will remain qualified and eligible for that position for as long as they live – certainly if there is no possibility of removing them from the post. Why should that assumption be correct? Is the only criteria for the job being able to breathe?
Firstly, there are a large number of medical conditions which could give rise to a person losing sufficient of their faculties to render them unable to fulfil their duties, (Alzheimer’s, brain cancer, depression, schizophrenia etc.) all of which are liable to affect a person’s ability to function and none of which are considered reasons for removing a Supreme Court Justice. But there are also social and societal conditions which should surely give one cause to re-evaluate an appointee’s ability to perform the job in hand.
Recent years have seen a great many social changes, most particularly in the area of equal and human rights: we have seen the decriminalisation of homosexuality in many countries, the acceptance and legalisation of same-sex marriage, the adoption of a third gender classification (neither male nor female). Such social changes can be major upheavals in the mindset of society, these are the sort of events which take decades even for the discussion to start, let alone for there to be a change in the laws or a change in behaviour. If the laws can change so dramatically, then surely we should require that those who administer and interpret our laws should themselves be capable of such dramatic adaptation? Why should judicial appointees not be regularly re-evaluated in their positions, just as we are in our daily jobs?
The very concept of democracy revolves around the ability of the people to exercise supreme power – something which usually takes the form of periodic voting to elect representatives. This periodic voting theoretically permits the people the right to change their minds, to change direction, to change the way they think. This collective ability to question direction is precisely what separates a democracy from a dictatorship.
Why then do we decry such authoritarianism in others, whilst imposing it on ourselves? A Lifetime appointment is the denial of the right to change – and I would question how we can tolerate that our laws change, and yet refuse to allow those who interpret our laws to also be changed.
My objections to this process are not related to Judge Kavanaugh himself, but to the process which denies the public any redress. As individuals we make mistakes, as societies we make mistakes – we know this and we accept this to a grater or lesser extent, it is even incorporated into the democratic values by which we live. So why then is this being set aside in this instance?
On a point of order, I would also argue that ALL claims of sexual assault should be investigated always – and not just at the whim of politicians! (but that is another blog…)
Indeed, poor Brett’s snivelling little-boy-lost act and his passion in blaming the victim(s) surely sheds a very poor light on his abilities as a judge.
Any experienced judge should be pushing for justice for everybody; the victims, the accused and for society, as it stands Brett could soon be literally judge (and with Trump behind him, effectively jury too) and clearly shows no empathy for his “enemies” – is the truth that he has an absolute contempt for women, like his benefactor?
Whilst I agree wholeheartedly with the comments made, both the concept of lifetime appointments and the consequent lack of future democracy is abhorrent, surely the the fact that so many American citizens actually support the status quo is even more worrying?
In all of the coverage I have read, no mention has been made if the appropriateness of lifetime appointments. There seems to be a distinct inability to question their own processes, even when they are so visibly broken.
It seems most of the world’s religions have a lower regard for women generally, the real surprise has to be that tens of millions of American women are prepared to accept that AND to vote for their own oppressors!
Born again? Oh, that’s fine then.
So, Supreme Court judges for life – even if subsequently found to be a mass murderer, a Russian spy, a rabid racist or Scientology preacher.
Is there a line, who draws it, who drew it and when?
Banana anyone?
Clearly there is no line, other than the whimsy of politicians. Given then the polarised partisan politics of today, even impeachement seems highly improbable.
The testimony from Judge Kavanaugh himself was full of bile, vitriol and alleged conspiracies against himself – if such behaviour doesn’t disqualify someone from sitting on the Supreme Court then clearly nothing will.
When the American constitution was written the separation of powers was seen as an important principle in the then fledgling democracy. The role of the (independent)Supreme Court in the interpretation of legislation was seen as a crucial factor. Lifetime appointments were seen as a way of preventing ‘meddling’ politicians making changes as administrations change, thereby maintaining judicial independence over time. Broadly speaking this worked and the American constitutional model was praised for its effectiveness.
However, probably since the Reagan years the principles of independence have been hijacked by the ‘Christian right’ as a way of attacking and getting rid of legislation of which they and their supporters disapprove, womens rights, gay rights, abortion rights and health care are all under attack in the US. When you add to this, the political partisanship which has developed over the years until we arrive at Trump and a Republican congress which supports him things look pretty grim.
In spite of the current position I would continue to support the ‘lifetime’ principle of appointments to the US supreme court. It is up to the electorate and those whom they elect to correct the ‘current state of the union’.
They will have the opportunity to start the process in the mid term elections in November. I await the outcome with more than a passing interest.
What then would be your recommendation for ensuring that candidates continue to meet the standards required for the job? Or do you also support not being able to remove appointees?
If you start to make continuance subjective, all hell breaks loose.
Everyone that doesn’t support current political policy is automatically treasonous (M. Thatcher) & anyone that makes a judgement the popular press doesn’t like can be publicly pilloried in the Sun & the Mail (traitor judges, and eremainer MPs too).
Horrible as it is “jobs for life” is best, the problem is the political systems that appoint them to the Supreme Council, or in our case the Lords.
Once they start packing them in on the basis of known known prejudice or “maliability” our troubles begin.
The process is supposed to weed out weirdos and lackeys, in fact it often finds exactly those cronies we should be disbarring.
I am not certain that evaluations of continuance are equal to subjectivity… although I recognise that such evaluations can open the door to such. Even a rigid application of rules can surely be open to interpretation – and thus potential abuse. Nevertheless, I maintain that in a world where society and laws are subject to change – the controls that we apply should also be subject to change.