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Trump can't delay the election, but he can derail it
Aug 05 2020
Ben-Yehuda is president and CEO of the Truman National Security Project, a progressive defense and foreign policy think tank, and the allied Truman Center for National Policy.
<p>The United States has a long history of voting during periods of intense conflict and division. Secretary of War Edwin Stanton devised the absentee voting system to <a href="https://www.military.com/military-life/how-absentee-voting-us-troops-won-civil-war-and-ended-slavery.html" target="_blank">hold elections during</a> the Civil War and to ensure soldiers on the front lines could exercise their right to vote. </p><p>Today, you might say, it's time to vote like it's 1864. </p><p>Last week, President Trump <a href="https://twitter.com/realDonaldTrump/status/1288818160389558273" target="_blank">suggested on Twitter</a> that the national election be delayed beyond Nov. 3. His supposed reason: a fear of fraud. Let's be clear about three things: First, The president of the United States does not have the authority to change the date of the election. That is a date set by Congress. Even Republican lawmakers <a href="https://thehill.com/homenews/senate/509790-senate-republicans-dismiss-trump-proposal-to-delay-election" target="_blank">have distanced themselves</a> from the remark. Second, fraud associated with mail-in ballots is extremely low. Even the conservative Heritage Foundation think tank has<a href="https://www.reuters.com/article/us-usa-election-vote-by-mail-explainer/explainer-fraud-is-rare-in-us-mail-in-voting-here-are-the-methods-that-prevent-it-idUSKBN2482SA" target="_blank"> conceded this point</a>. Third, the president is spreading disinformation to undermine trust in the democratic process. </p><p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Record numbers of Americans will turn to vote-by-mail options this year and there's much work to be done to ensure full enfranchisement. But the purpose of Trump's tweet is to cast doubt, distract and lay down rhetorical track in an effort to discredit the election and its outcome. </p><p>Consider the timing. His statement came on the heels of the country passing 150,000 deaths from Covid-19 — the highest number in the world. It was posted just minutes after the Commerce Department announced the national economy in the second quarter <a href="https://www.nytimes.com/live/2020/07/30/business/stock-market-today-coronavirus?action=click&module=Top%20Stories&pgtype=Homepage" target="_blank">contracted more than at any time on record</a>. And he tweeted just as 19 polls in <a href="https://www.forbes.com/sites/andrewsolender/2020/06/25/nearly-20-swing-state-polls-were-released-todaybiden-leads-in-all-of-them/#37e993f67594" target="_blank">swing states were released </a>— every one of them showing former Vice President Joe Biden in the lead. </p><p>Trump is on the ropes and he knows it. And manufacturing controversy in such moments is his go-to tactic — as true today as it has been over these past weeks, when he deployed federal law enforcement to combat a threat in Portland, Ore., that did not exist.</p><p>Ultimately, however, the president's stated intentions themselves present a very real threat. These are well-worn tactics straight out of the<a href="https://www.foreignaffairs.com/articles/united-states/2020-07-22/turkey-mirror-united-states" target="_blank"> authoritarian playbook</a>. Indeed, the last year has brought a steady trickle of democracy-erosion, in which Trump has followed the well-worn path of authoritarian demagogues. </p><p>He has <a href="https://www.newsweek.com/trump-warns-2020-election-could-rigged-his-administrations-investigation-found-no-widespread-1506501" target="_blank">sowed doubt</a> about the legitimacy of future elections; <a href="https://www.cnn.com/2020/06/23/politics/donald-trump-mail-voter-fraud-most-corrupt-election/index.html" target="_blank">predicted election fraud</a>; questioned the reliability of <a href="https://www.washingtonpost.com/politics/trumps-attacks-on-mail-voting-are-turning-republicans-off-absentee-ballots/2020/07/07/640b6126-bbd4-11ea-80b9-40ece9a701dc_story.html" target="_blank">election procedures</a> (in this case, absentee ballots, whose reliability is at least as good as in-person voting); suggested he <a href="https://www.msnbc.com/rachel-maddow-show/asked-what-he-d-do-if-he-loses-trump-hedges-n1234360" target="_blank">might not leave</a> even if voted out of office; <a href="https://www.usatoday.com/story/news/politics/2020/07/04/july-4th-trumps-white-house-party-scaled-back-over-coronavirus/5355855002/" target="_blank">invented domestic enemies</a> whose defeat requires the aggrandizement of his own power — and, not coincidentally, the preparation of a domestic security force loyal to him; <a href="https://www.nytimes.com/2020/07/23/upshot/trump-portland.html" target="_blank">trampled local authority</a>; and <a href="https://www.nytimes.com/2020/07/06/opinion/letters/trump-coronavirus-mount-rushmore.html" target="_blank">telegraphed</a> to anyone familiar with the pattern that he is happy to gut the democratic process to preserve his position.</p><p>We cannot doubt that, given the opportunity, the president would follow further in the footsteps of those authoritarian strongmen — led by Turkey's Recep Tayyip Erdoğan, Hungary's Viktor Orbán and Russia's Vladimir Putin — whom he has so publicly admired. </p><p>There is compelling evidence he might get that chance: Absentee ballots could take weeks to count after Election Day, offering ample space for accusations of "election rigging" as Americans' expectations of a rapid resolution are dashed. States might fail to certify their members of the Electoral College for so long that the election is ultimately decided by Congress rather than with voters. Federal law enforcement has <a href="https://www.nbcnews.com/politics/donald-trump/gop-recruits-army-poll-watchers-fight-voter-fraud-no-can-n1217391" target="_blank">threatened</a> to send "monitors" around the country who might discourage voting, and local militias have threatened to do the same. And foreign governments, as well as malicious domestic actors, continue to attack our democracy without fear of reprisal. </p><p>In short, we face the greatest credible threat to a national election in our lifetimes. The chief architect of that instability and corruption: our own president.</p><p>The late great John Lewis <a href="https://www.nytimes.com/2020/07/30/opinion/john-lewis-civil-rights-america.html" target="_blank">told us</a>, "Democracy is not a state. It is an act." This election's credibility will be bolstered in part by high levels of voters acting — by turning out in big enough numbers to produce a margin of victory too big to credibly challenge.</p><p>But we need to do more than vote. We need to vote now — to help reduce the flood of ballots to be counted in November and ease the burden on local election officials. Go to <a href="http://vote.org/" target="_blank">vote.org</a> to see if your registration is current and request an absentee ballot. It's especially important for the 3 million eligible voters who live overseas and know all too well the implications of Trump's withdrawal from the world — but who vote at shockingly low levels, with just a <a href="https://www.fvap.gov/uploads/FVAP/OCPANewsRelease_20180911_FINAL.pdf" target="_blank">7 percent tunrout</a> two years ago. They should go to <a href="https://www.fvap.gov/citizen-voter/overview" target="_blank">fvap.org</a> to request an absentee ballot today.</p><p>But don't stop there. Help family and friends do the same. If you're healthy and able, sign up to work at your local polling location. The <a href="https://www.pewresearch.org/fact-tank/2020/04/06/older-people-account-for-large-shares-of-poll-workers-and-voters-in-u-s-general-elections/" target="_blank">majority of poll workers </a>are older than 60 and more susceptible to dire outcomes after catching Covid-19, meaning our polls are likely to be more under-resourced than usual.</p><p>Trump can't delay the election, but he can derail it. Voting early is the best thing to do to keep our election on track.</p>
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Alex Wong/Getty Images
Total bipartisan rejection of Trump’s idea the election be postponed
Jul 30 2020
President Trump took his crusade against voting by mail to a whole new level Thursday, suggesting for the first time that "delay" of the election is the best way to prevent his re-election from being stolen from him.
The idea was either castigated, dismissed as impossible or disregarded as a silly trial balloon diversion by senior members of Congress from both parties as well as legal scholars.
But it nonetheless intensified the president's efforts to sow doubt about the reliability of the November result — which, if he ends up contesting and refusing to concede defeat, could produce a constitutional crisis posing an unprecedented challenge to democracy.
<p>Even the suggestion of delay, from a sitting and politically embattled head of government, conjured up fresh anxiety about how easy it could be for a committed autocrat to upend the United States' global standing as a virtuous beacon for its unbroken two-century record of peaceful transfers of power.</p><p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Trump floated an election postponement beyond Nov. 3 in a tweet that started out as a riff on the unsubstantiated claim he's made dozens of times since March: That mail-in voting available to everyone because of the coronavirus — which he wrongly differentiated from no-excuse absentee balloting, "which is good" — will result in "the most inaccurate and fraudulent election in history." </p><p>Tacked onto the end was the newsworthy part: "Delay the Election until people can properly, securely and safely vote???"</p><div id="57628" class="rm-shortcode" data-rm-shortcode-id="7bdb07540878ba6ee4b867f68c385674"><blockquote class="twitter-tweet twitter-custom-tweet" data-twitter-tweet-id="1288818160389558273" data-partner="rebelmouse"><div style="margin:1em 0">With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT E… https://t.co/VcSCg7IPwj</div> — Donald J. Trump (@Donald J. Trump)<a href="https://twitter.com/realDonaldTrump/statuses/1288818160389558273">1596113169.0</a></blockquote></div><p>The president has no legal authority to delay the vote on his own. The Constitution says it's up to Congress to regulate the "time, place and manner" of federal elections, and federal law has fixed Election Day as the Tuesday after the first Monday in every even-numbered November since 1846.<br></p><p>And so it could only be lawfully switched through legislation cleared by Congress — where essentially no one in authority is contemplating such a move, in either the Democratic House or the Republican Senate.</p><p>The date has never been pushed back — not during the Civil War, the flu pandemic a century ago or World War II. And doing so even by a few days would create enormous complications for the timely certifying of results and the work of the Electoral College. And the deadline at the end is immovable. The Constitution says the presidential term ends at noon Jan. 20.</p><p>"Only Congress can change the date of our elections, and under no circumstances will we consider doing so to accommodate the president's inept and haphazard response to the coronavirus pandemic," said Rep. Zoe Lofgren of California, the Democrat who chairs the committee with jurisdiction over election law.</p><p>Senate Majority Leader Mitch McConnell refused to comment to reporters at the Capitol but told a Kentucky TV station the election timetable is "set in stone." House GOP Leader Kevin McCarthy said "we should go forward with our election." </p><p>And several of Trump's most prominent allies in the Senate GOP — including Ted Cruz of Texas, Marco Rubio of Florida and Lindsey Graham of South Carolina — dismissed the notion of any delay. </p><p>"We're going to have an election, it's going to be legitimate, it's going to be credible, it's going to be the same as it's always been," Rubio told reporters at the Capitol.</p><p>"It's unthinkable that that would not be the case," added Mitt Romney of Utah, one of the president's few vocal GOP critics on the Hill. </p><p>Other Republicans laughed off the proposal as a clever way to distract from the alarming news announced just before Trump took to Twitter: The economy shrank at a head-spinning 32.9 percent annual rate in April, May and June even as many states were pushing to reopen during a slight break in the Covid-19 outbreak.</p><p>Good-governance advocates and civil rights groups reacted emphatically to Trump's suggestion. Some warned it was a foretaste of more dangerous behavior to come before the election, while others used the moment to urge Congress to deliver a generous amount of fresh help for smoothing their mail voting systems in the economic rescue package now stuck in negotiations.</p><p>"Trump poses an existential threat to our democracy," said Sean Eldridge of the progressive voting right group Stand Up America, which is already organizing a grassroots campaign to organize nationwide protests if Trump is defeated but clings to power. "Americans need to be ready to mobilize."</p><p>Beyond condemning Trump's "extraordinary statement," Trevor Potter of the Campaign Legal Center said, the best way for Congress to respond is to reach a quick bipartisan deal on money "to make sure that the election takes place safely and smoothly," because "time is running out to give the states the funding they need to get this right."</p><p>There is no evidence of widespread election fraud using mailed-in ballots, which will be available to all voters without any excuse requirements in at least three-dozen states this fall. A quarter of all votes were cast this way in the past two elections, but that number is expected to double at least because of voters' fears of contagion at polling places. </p><p>Five states will rely almost exclusively on mailed ballots, and their safeguards are widely hailed as preventing foreign hacking and the domestic envelope theft or tampering. </p><p>Trump's claims that fraud is assured are therefore baseless. So is his claim that expanded remote voting is the "biggest risk" to his reelection. Studies have shown no partisan tilt in overall absentee vote, and the GOP for years made the mail part of its strategy for getting out its vote, especially among the elderly.</p><p>The president and many in his administration have often asked for and used absentee ballots, which Trump says is somehow more appropriate than states proactively delivering either ballots or absentee request forms.</p><p>In April, when the pandemic was at its initial peak, Trump told reporters he would not consider postponing the election. "I never even thought of changing the date," he said. "Why would I do that? Nov. 3, it's a good number. No, I look forward to that election."</p><p>But two weeks ago, he refused during a Fox News interview to commit to accept the results. "I have to see," he said then."I'm not going to just say 'yes.' I'm not going to say 'no.' "</p><p>Attorney General William Barr, in his combative House testimony Tuesday, said he had no "reason to think" the election would be rigged but "if you have wholesale mail-in voting, it substantially increases the risk of fraud."</p>
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Kathryn Elsesser/Getty Images
A federal police officer stands in front of a federal courthouse in downtown Portland.
Challenges to Portland deployment test limits of local and federal authority
Jul 30 2020
Adams-Schoen is an assistant law professor at the University of Oregon.
<p>President Trump <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/" target="_blank">says</a> the Justice Department will send a "surge of federal law enforcement" into American cities run by "extreme politicians" who are on an "anti-police crusade" — including Chicago, Kansas City, Albuquerque, Cleveland, Detroit and Milwaukee.</p><p>Those places may soon see legal battles like the ones in Portland. Four notable federal lawsuits are already challenging actions of the federal agents purportedly sent to <a href="https://www.whitehouse.gov/presidential-actions/executive-order-protecting-american-monuments-memorials-statues-combating-recent-criminal-violence/" target="_blank">protect federal property</a> on the July 4 weekend and remaining in Oregon's largest city four weeks later — with only a tentative, phased withdrawal agreement between the state and the Trump administration set to begin on Thursday.</p><p>A surge of hundreds of federal officers into <a href="https://www.santafenewmexican.com/news/local_news/trump-announces-deployment-of-federal-agents-to-albuquerque/article_e80a12d6-cc34-11ea-9ab0-5b1cd8827f75.html" target="_blank">American cities</a> would represent an unprecedented expansion of the role of the federal government into local police matters.</p><p>Together, the Portland lawsuits ask the court to delineate, and enforce, constitutional limits on the federal government's ability to override state and local law enforcement and use police tactics that violate protesters' constitutional rights.</p><p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Since <a href="https://www.kgw.com/article/news/local/protests/protests-in-portland/283-21d67e10-4b33-46d4-a81e-7d3b437a7519" target="_blank">May 29</a>, Portlanders have marched, sung, chanted and stood together to demand racial justice and condemn police violence against Black Americans.</p><p>Local officials and observers describe a fringe minority of protesters <a href="https://www.oregonlive.com/crime/2020/07/feds-conduct-surveillance-from-downtown-courthouse-analyze-social-media-videos-post-undercover-agents-in-crowds-records-show.html" target="_blank">aiming laser pointers at officers</a>, throwing cans, breaking windows, setting dumpsters on fire and <a href="https://www.newsweek.com/portland-protesters-throw-fireworks-federal-courthouse-1519881" target="_blank">shooting fireworks at the federal courthouse</a>. One was arrested for <a href="https://ktvz.com/news/crime-courts/2020/07/14/texas-man-charged-with-hammer-attack-on-federal-officer-at-portland-protest/" target="_blank">allegedly attacking a federal officer</a> with a hammer.</p><p>In response, the Department of Homeland Security has deployed paramilitary-style units. The <a href="https://www.whitehouse.gov/briefings-statements/remarks-president-trump-operation-legend-combatting-violent-crime-american-cities/" target="_blank">president</a> has characterized the operation as limited to protecting federal property and personnel and enforcing federal law – but also restoring public safety after liberal politicians "put the interests of criminals above the rights of law-abiding citizens."</p><p>State and local officials and observers say those federal agents are <a href="https://www.snopes.com/fact-check/feds-unmarked-vans-portland/" target="_blank">detaining and arresting innocent protesters</a>. They also say federal officers have fired non-lethal rounds, pepper balls and <a href="https://www.nytimes.com/2020/07/23/us/portland-protest-tear-gas-mayor.html" target="_blank">tear-gas canisters</a> at peaceful protesters, journalists, medics and legal-rights observers.</p><p>In a court filing, the <a href="https://www.courtlistener.com/recap/gov.uscourts.ord.153126/gov.uscourts.ord.153126.70.0.pdf" target="_blank">city says</a> the presence of heavily armed federal agents is not keeping order, but rather "escalating violence, inflaming tensions in our city and harming Portlanders." The city also says that "credible allegations have been made that the federal government has effectively kidnapped people off Portland streets, among other abuses of power."</p><p>The <a href="https://www.courtlistener.com/docket/17301670/index-newspapers-llc-v-city-of-portland/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc" target="_blank">first lawsuit</a> was filed by six journalists and legal observers seeking to stop Portland police from assaulting reporters, photographers and legal observers documenting the police's violent response to protests. After the arrival of federal agents, the suit expanded to include the Department of Homeland Security and the U.S. Marshals Service.</p><p>Last week, District Judge Michael Simon rejected the government's argument that the force used was one of the "'unintended consequences' of crowd control," and he told federal agents they could not arrest or use physical force on journalists or legal observers — or stop them from recording what they saw.</p><p>In <a href="https://www.courtlistener.com/docket/17361877/rosenblum-v-john-does-1-10/" target="_blank">the second lawsuit</a>, state Attorney General Ellen Rosenblum is seeking to stop federal agents from detaining or arresting people without probable cause or a warrant, and to require federal agents to identify themselves and their reason for an arrest or detention.</p><p>Citizens rightly fear "being thrown into a van by anonymous agents," the suit says, which infringes on their First Amendment rights to protest. It also says citizens have Fourth and Fifth Amendment rights not to be snatched "off of the streets without probable cause" by unidentified officers in unmarked cars.</p><p>On Friday, District Judge Michael Mosman denied Oregon's request to immediately bar such behavior, saying there was not enough evidence to show a pattern of unlawful detentions and finding the state did not have standing to seek the temporary order.</p><p>As the parties prepare their next moves, governors throughout the country will be watching to see if the judge recognizes a state's interest in local police matters and its standing to sue federal agencies to protect the constitutional rights of its citizens.</p><p>The <a href="https://www.courtlistener.com/docket/17367081/western-states-center-inc-v-united-states-department-of-homeland/" target="_blank">third case</a> focuses on the <a href="https://constitution.congress.gov/constitution/amendment-10/" target="_blank">10th Amendment</a>, which says that, except for the federal powers spelled out in the Constitution, all other powers are reserved to the states and its citizens.</p><p>The plaintiffs maintain federal agencies are infringing on Oregon's sovereign powers to police Oregon streets. They say the deployment of federal law enforcement officers infringes on the power of Oregon citizens to hold state and local police accountable.</p><p>The lawsuit also argues the federal response violates the First Amendment rights of <a href="https://www.firstunitarianportland.org/" target="_blank">the First Unitarian Church of Portland</a>, whose religious practice includes activism and protest in the face of injustice.</p><p>While the federal government has a right to protect its property and personnel, the suit says, "defendants have far exceeded these constitutional limitations" in Portland.</p><p>What happens next depends in part on whether the plaintiffs ask for an immediate order requiring the federal agencies to leave local policing to state and local law enforcement.</p><p>In <a href="https://www.courtlistener.com/recap/gov.uscourts.ord.153706/gov.uscourts.ord.153706.1.0.pdf" target="_blank">the fourth case</a>, street medics who tended to protesters have sued both the city and federal agencies, saying their First and Fourth amendment rights were violated when "police and federal agents brutally attacked volunteer medics with rubber bullets, tear gas, pepper spray, batons and flash-bangs."</p><p>The medics want a court order to protect them from further harm. A ruling is likely in the coming week.</p><p>The theme of urban violence used by Trump <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1747&context=faculty" target="_blank">plays on white fears of Black people</a> and those living in extreme poverty.</p><p>Trump uses coded racist language to <a href="https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-protecting-suburbs-preserving-american-dream-americans/" target="_blank">paint a picture</a> of cities "<a href="https://www.reuters.com/article/us-global-race-protests-trump/trump-says-sending-federal-agents-to-more-u-s-cities-to-fight-violent-crime-idUSKCN24N2GT" target="_blank">plagued by violent crime</a>," "heinous crimes" and "bloodshed." He claims that local leaders <a href="https://www.whitehouse.gov/presidential-actions/executive-order-protecting-american-monuments-memorials-statues-combating-recent-criminal-violence/" target="_blank">have abdicated their duty to protect citizens</a>, requiring the federal government to step in.</p><p>The nation was founded on the principle that <a href="https://supreme.justia.com/cases/federal/us/564/211/" target="_blank">freedom is safeguarded by two governments</a> — a federal government with specific and limited powers, and state governments with all other powers.</p><p>The Constitution reserves to the states an expansive power to police because that allows for law enforcement policies that reflect local circumstances and customs, and are responsive to the concerns of local citizens – which is exactly what Black Lives Matter and other protesters are now demanding in Portland and throughout the country.</p><br><em>This is republished from </em><a href="https://theconversation.com/us" target="_blank"><em>The Conversation</em></a><em> under a Creative Commons license. </em><a href="https://theconversation.com/whos-in-charge-of-lifting-lockdowns-137972" target="_blank">Click here</a><em></em><em> to read the original article.</em>
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Alex Wong/Getty Images
There's no "Antonin Scalia" or "Ruth Bader Ginsburg" seat mentioned in the Constitution, "but it sure feels that way," writes Gabe Roth.
It's time to end life tenure at the Supreme Court
Jul 22 2020
Roth is executive director of Fix the Court, a nonpartisan organization that advocates for greater transparency and accountability in the federal judiciary.
<p>Two Supreme Court justices have been hospitalized in the past month for serious health issues. Either could have died, reshaping the court — and the law — for decades. These close calls have increased interest in a question that scholars have been debating since our nation's founding: Should justices serve on the high court for life? </p>
<p>The simple answer is that they shouldn't. And there's a straightforward and widely popular fix that would safeguard judicial independence while preventing superannuation: establishing 18-year term limits for future justices. </p>
<p>Chief Justice John Roberts is only 65, but given his history of seizures, the <a href="https://www.npr.org/2020/07/08/888837457/chief-justice-john-roberts-was-hospitalized-in-june-after-falling-injuring-head" target="_blank">June 21 fall</a> that landed him in the hospital for a night was of great concern for those who've <a href="https://www.nytimes.com/2020/07/14/opinion/john-roberts-supreme-court-partisanship.html?referringSource=articleShare" target="_blank">praised</a> his efforts to keep the court above the political fray during the Trump presidency. Justice Ruth Bader Ginsburg, who's 87, <a href="https://www.nytimes.com/2020/07/14/us/Ruth-bader-Ginsburg-infection-hospital.html" target="_blank">spent a night in</a> Johns Hopkins Hospital in Baltimore last week for a possible infection and subsequently announced she's being treated for a recurrence of cancer, reigniting liberals' fears over a possible vacancy during the peak of a presidential campaign.</p>
<p><p style="text-align: center;"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Ginsburg's health has caused anxiety ever since Republicans took control of the Senate after the 2014 election, when she was a mere 81 and had already served on the high court for 21 years. That should have been enough time to make her mark on the law, right? </p>
<p>In the past, justices would leave the court for all sorts of reasons after tenures of <a href="http://epstein.wustl.edu/research/courses.judpol.Calabresi.pdf" target="_blank">15 to 20 years</a> — sometimes even less. Then they'd <a href="https://www.constitutionfacts.com/us-supreme-court/first-chief-justice-john-jay/#:~:text=Governor%20of%20New%20York%20and%20Later%20Life&text=After%20serving%20as%20Governor%20for,in%20Westchester%20County%2C%20New%20York." target="_blank">run for office</a>, <a href="https://law.jrank.org/pages/6405/Ellsworth-Oliver.html#:~:text=Ellsworth%20did%20not%20abandon%20public,Windsor%2C%20before%20taking%20his%20seat." target="_blank">take a different government appointment</a>, <a href="https://www.oyez.org/cases/1971/71-32" target="_blank">return to private practice</a> or simply enjoy their sunset years. Nowadays, justices hold on to their power for as long as they can, say 30 or 35 years — and then continue holding on to it until a president with whom they tend to agree sits in the Oval Office. </p>
<p>There's no "Ginsburg seat" or "Antonin Scalia seat" mentioned in the founding document, but it sure feels that way.</p>
<p>The fate of our nation's laws should rest in the hands of individuals who hold their positions based on fairness and regularity, not on actuarial tables and support for the current president. </p>
<p>That's why I, and <a href="https://scotusterms.org/wp-content/uploads/2019/07/July-8-CSCTL-letter.pdf" target="_blank">many others</a> who are much smarter, advocate limiting future justices to 18 years of active service. After that, they would become "senior justices," maintaining the same office and compensation as Article III of the Constitution commands, but not hearing cases unless called upon. Under this proposal, senior justices could also choose to serve on a lower court by designation, something that justices who have retired from the court <a href="https://www.ca9.uscourts.gov/ce9/view.php?pk_id=0000000642" target="_blank">regularly</a> <a href="https://www.scotusblog.com/2016/05/scotus-for-law-students-retired-justices/" target="_blank">do</a>.</p>
<p>The elegance of the 18-year plan is that it allows each president to nominate two of the nine justices per four-year term, with no exceptions. In the case of an unexpected vacancy — because of death or medical emergency, say — a senior justice would fill in until the expiration of the term of the departed justice. For example, when Scalia died four years ago, the court would not have been reduced to eight justices; rather, the most recently retired justice, John Paul Stevens, would have taken his place until the next justice was confirmed.</p>
<p>Term limits for the Supreme Court are widely popular, with <a href="https://fixthecourt.com/2020/06/latest-scotus-term-limits-poll/" target="_blank">polling</a> this spring showing 77 percent of Americans favoring the reform. It's an idea that has received support from intellectuals across the political spectrum and was recently <a href="https://fixthecourt.com/2020/06/founding-era-think-tank-america-scotus-term-limits-among-reforms-needed-fix-democracy/" target="_blank">endorsed</a> by the American Academy for Arts and Sciences, a society founded a decade before the Constitution was ratified.</p>
<p>Limiting justices' terms would not magically end the hyperpartisanship in Washington today. But it would greatly reduce the chance and gamesmanship that currently characterize the process of confirming justices. Not happy with a recently confirmed justice? No problem. The next opportunity to shape the court is coming in 24 months. </p>
<p>Such regularity would reduce the temperature of today's Senate confirmation process, promote fair-mindedness and increase the chances the future justices are seasoned jurists in their 50s or 60s — and not firebrands in their 40s replacing jurists in their 90s, which is what the current system encourages.</p>
<p>"There is much to be said for changing life tenure to a term of years, without possibility of reappointment," one of <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1110&context=historical" target="_blank">President Rondald Reagan's lawyers</a> wrote in 1983. Term limits, he added "would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones."</p>
<p>That lawyer was John Roberts. Congress should heed that advice and pass a law. Though the Constitution implies a justice serves for life, it doesn't say on which court she shall serve out her days. </p>
<p>Serve 18 years on the Supreme Court, then rotate to a lower court or retire outright, and return to the high court if needed. That way fairness, not a cabal of the infirm, will reign supreme.</p>
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