Can someone tell me what was the rationale by our founders for life appointments to SCOTUS?

[RKP5637]

Thanks

[Bettie]

1. People didn't live nearly as long

and they did it under the assumption that a lifetime appointment would take politics out of the equation as they would never have to be re-elected or re-confirmed, so they could be impartial.

Hasn't really worked out that way though.

[RKP5637]

5. Thanks! n/t

[jberryhill]

8. That's something of a canard

The average life expectancy was relatively low because of a high incidence of infant mortality and childhood disease.

Somehow, people manage to interpret that as "people didn't live long".

If people made it to adulthood in the first place, they generally lived well into old age.

John Marshall - first Chief Justice of the Supreme Court - lived to be 80.

[unblock]

13. over the course of the country, it largely has worked as intended.

there have been partisan appointments in the past, though it has only been in the last few decades that presidents, particularly republican, have sought reliably, highly partisan justices.

still, imagine how some cases might be decided if the justices were up for reappointment. for instance, it would be very difficult to protect the rights of the accused if the justices were trying to get reappointed by politicians, especially "law and order" types....


that said, i agree that republicans have broken the system, putting people on the court who aren't interpreting the constitution so much as imposing their own right-wing fantasies on the rest of us.

[Whiskeytide]

18. It sort of has...

Last edited Tue Sep 4, 2018, 11:28 AM - Edit history (1)

... see, e.g. Warren. But as our political division seems to have grown (at the hands of republicans for the most part), so has the division of appts to the Court.

One can argue that it has always been this divisive, but I don’t think so. Republicans have spent 40 years quite literally demonizing democrats - with minimal pushback - and I don’t think that was quite on display in the first 70 years of the last century. Perhaps it’s has more to do with the advancements in mass media, but the “I hate libruls more than foreign enemies” is kind of new, and is the result of the anti-progressive drumbeat of the modern era.

The idea of lifetime appointments is a good one when you assume that congress will take the responsibility of confirming judges/justices seriously and solemnly. It becomes a problem, though, when one side considers it just another political tool to advance their agenda.

[jberryhill]

2. Federalist No. 78

[RKP5637]

3. Thanks! n/t

[DemocratSinceBirth]

4. So they would be immune from politics.

[RKP5637]

6. That sure worked well! n/t

[DemocratSinceBirth]

11. The Founders were well intentioned and generally very smart.

They weren't clairvoyant.

[RKP5637]

15. Exactly, none could have really envisioned what we have today. n/t

[DemocratSinceBirth]

17. Separation of power and checks and balances

Separation of power and checks and balances break down when one party controls all the levers of government and the one party doesn't abide by the rule of law.

[RKP5637]

21. Yep, there is a notion that all players are basically fair and honest, respecting what is good for

the country ... and we have seen the coup/treasonous/espionage attempt to undermine the country for political gain with foreign agents.

[unblock]

20. well... actually, it has, albeit perversely.

the *justices* are well protected from politics in that they can decide and write opinions however they want without fear of political consequence. for example, right-wing justices can make heinous decisions and still keep their jobs no matter how unpopular their decisions may be because they've got life tenure.

that's the kind of political insulation the framers wanted.

what they didn't perhaps anticipate, or fully appreciate, was that partisan politicians would then try to stack the court with highly partisan people in the first place.

[RKP5637]

23. Definitely, the stacking of the court has created a significant misalignment with the goals IMO of

the founders.

[Wounded Bear]

25. The Senate was supposed to prevent "stacking" of the court...

but once again, Repubs have put party and ideology above their real jobs as a check on Presidential power, service to the American people, and protection of the Constitution.

[brush]

26. They also didn't anticipate the SCOTUS seat thief McConnell, or the POTUS thief trump getting...

to make two appointments in less than two years.

[madaboutharry]

7. So they wouldn't be influenced

by politics and public opinion. Hasn’t worked out that way!

[RKP5637]

10. In fact quite the opposite in so many ways. n/t

[Wounded Bear]

9. It is supposed to "de-politicize" the office...

the theory being that having a new SC being appointed with each administration would lead to drastic whipsaw changes to Justice every 4 to 8 years. Same with FBI director being a 10 year gig. Unfortunately, it is too easy for that position to be fired by the Pres.

The flip side of that is what we're seeing. Court packing that will last for a generation.

The founders were, in some ways, a bit naive. They all pretty much hated political parties after how Parliament had worked prior to the Revolution, but then they put nothing into the Constitution to rein in the power that such parties amass over time. The organization of political parties is inevitable in a democracy, and the trick is to prevent one party to amass such power that they can rule as a minority party, and use their power to suppress opposition, which is what we're seeing currently.

[RKP5637]

12. Yep! If doing it today, they sure would have done it far differently IMO. n/t

[DemocratSinceBirth]

14. Among other things the Electoral College was also supposed to be a brake on radical democracy.

The Electors could overrule the vote if the voters voted for someone manifestly unfit for office.

[RKP5637]

16. And, we have mr. tRump! n/t

[Wounded Bear]

19. Not exactly...

The EC was supposed to be a "balance of power" move for the small states, so they wouldn't be railroaded by the bigger, more populous states. Unfortunately, the ratio of big/small states has shifted dramatically. Out of the original 13 colonies, about 4-5 could be considered "populous" northern states against the 5-6 southern states that were more agrarian and based on slaves. The southern states also counted heavily on the 3/5ths rule for their political power.

Now, we have about 8-10 "large" states versus 35-40 smaller, less populous states. In the EC and the Senate that becomes a form of gerrymandering that is difficult for Dems to overcome.

[DemocratSinceBirth]

22. That's why I said "Among other things..."

It also gave slave states more power as slaves who were not considered citizens and thus weren't included in their population.

[unblock]

29. they were counted as 3/5th, in order to maintain the balance of power.

note, of course, slaves couldn't vote, so counting them at all only served to give the slave states more power.

it's ironic that the insult of counting them as less-than-whole people helped to further entrench their slavery.

in truth, counting them as zero people would have given the north enough power to end slavery a lot faster, which is why the slave states wanted to count slaves as full people. 3/5th was a compromise that "worked" for the states, albeit not for the slaves....

of course the real insult was denying them the vote, not to mention slavery itself....

[unblock]

24. yes, the electoral college has two aspects:

first is the math aspect that you describe well and i agree with your analysis.

the second aspect is that the framers didn't prescribe the winner-take-all automatic votes that in practices we effectively have. yes, maine and nebraska have a slightly different allocation, and yes, there's the ocassional "unfaithful elector", but in practice, the "math" wins. the framers wanted actual human beings, not just a math formula.

the framers originally intended the electors to be actual human beings who wouldn't necessarily behave as robots, and certainly wouldn't be legally bound by their states to vote in a particular way. they wanted people who would exercise some judgment for the benefit of the nation.

in practice, though, electors are chosen for their loyalty and hyper-partisanship, and in some states are legally bound to vote in a particular way, at least on the first ballot. not what the framers intended.

[DemocratSinceBirth]

27. We are a republic, albeit a democratic one.

[Wounded Bear]

28. Not really...

in the Constitution, the electors are appointed by the state legislature. The popular vote isn't even mentioned. There is no constitutional link between the popular vote and the Presidency other than the ability of the citizens to elect their state governments. It does not define how the electors are to decide how they vote. They were never really intended to be "independent" actors.

But then again, they seem to have assumed the states would act rationally.

[unblock]

33. i agree, though my point was that they were intended to be humans capable of making a meaningful

decision.

the framers could have simply said each state gets so many electoral votes and the respective legislatures can allocate them as they choose. instead, they said the electors would be humans who would meet in their respective states and cast their ballots for president and vice-president.

they specifically wanted human beings in that role.

i agree that each state has, in practice, always allowed popular elections for president even though they're under no legal obligation to do so.

[Turbineguy]

30. The Founding Fathers never envisioned that the USA would be run

by and for a foreign power. That was the whole point of the Revolution!

The SCOTUS is supposed to be independent and not subject to short term political considerations or expediencies.

[RKP5637]

31. Exactly!!! n/t

[The Velveteen Ocelot]

32. Theoretically, so they wouldn't be influenced by the politics of the moment.

It protects them against unwarranted interference from either the legislative or executive branch, especially against “retribution” for decisions going against the wishes of the president who appointed them. If a justice could be "fired" by a president who didn't like a decision, can you imagine what Trump would do? Trump was even considering revoking Gorsuch's appointment after he made private comments critical of Trump's attacks on the federal judiciary. Knowing that their job is safe makes it easier to decide cases that might be unfavorable to the interests of a despotic, vengeful asshole like Trump.

[RKP5637]

34. All good points! Thanks!!!