Perry has plenty of ideas on Supreme Court, including term limits
Washington • Rick Perry, like other conservatives, has lots of complaints about the Supreme Court: The justices, he says, have meddled in social policy, stepped on state power and generally run amok.
One solution the governor embraces is to end lifetime tenure a cornerstone of the Constitution, whose drafters worried far less about activist or senile judges than about meddling tyrants and political pressure.
The idea isn't original, and it's not limited to conservatives. Some scholars on the left have also embraced the idea as a correction for judges serving too long.
It began to percolate in the 1980s and '90s after a series of bruising Senate confirmation fights, although it's never gained much traction. A handful of bills and proposed constitutional amendments have been filed in Congress in recent years to little effect. But Perry's embrace of the idea, combined with his states' rights principles, may demonstrate how he would push as president to change the balance of power in the federal government.
Perry, in his anti-Washington book "Fed Up!," derides the high court as "nine oligarchs in robes" and writes: "We should take steps to restrict the unlimited power of the courts to rule over us with no accountability."
Perry devotes an entire chapter to his indictment of the judiciary. The proposal to eliminate life tenure is barely a footnote, but that's enough to inspire sharp passions.
"Most lawyers would be against this," said Laurel Bellows, president-elect of the American Bar Association. "If you are a strict constructionalist which apparently the governor isn't because he's looking to amend the Constitution you would have respect for the wisdom of the Framers."
Perry's stance is remarkable in the sense that presidents have long viewed the power to shape the judiciary as one of the biggest prizes that comes with winning the White House.
That's why the stakes are so high and the fights so fierce when a rare Supreme Court vacancy arises. It's a key reason President George W. Bush picked a 50-year-old conservative, John Roberts, as chief justice, planting seeds of a legacy that could persist for decades longer than his own presidency. And it's unclear if more frequent confirmation fights would insulate the judiciary or make it even more politicized.
At Alliance for Justice, a liberal advocacy group, president Nan Aron noted that five of nine current justices were appointed by Republicans.
Railing against the judiciary is an effective way for Perry to attract conservative voters, she said, but "I don't know that he's fully thought that through. ... He would want his judges to serve for life."
One legal scholar who has led the charge for judicial term limits, Lucas Powe Jr. of the University of Texas in Austin, who describes himself as a liberal, said Perry is on the right track but for the wrong reasons.
"I don't think you'll hear him screaming 'judicial activism' if the Supreme Court strikes down Obamacare," Powe said. "There's nothing principled about that argument."
Powe, who clerked for the longest-serving justice in history, William Douglas, who served almost 37 years, has found that in the 1970s, justices typically left the bench after about 18 years. Now, the average is about 27 years. His research has found few examples of a justice making a novel legal contribution after their 18th year.
So Perry's proposal is "not too whacky," Powe said.
In the book, Perry only alludes to how he would change judicial tenure, referring to a plan that would stagger Supreme Court terms so there's a retirement every two years. In that plan, justices would get 18-year terms, to ensure that no single president gets to pick a majority of the nine-member court.
"Basically justices stay too long. They just are old" and they come to believe they're indispensable, Powe said. But even with 18-year term limits, "they're still unaccountable. They still can get out of touch."
Some legal scholars say Congress could impose term limits by law, though others say it would require a constitutional amendment, requiring two-thirds votes in the House and Senate, and ratification by the states. Given how polarized judicial politics are, no change is likely anytime soon, even if Perry were pushing for it from the White House.
Perry spokeswoman Katherine Cesinger said term limits is one of several options Perry has proposed to improve accountability in the judicial branch. He "is very serious about looking at ways to limit the power of activist judges, and as president, he would appoint judges who respect the Constitution."
England and Japan have mandatory retirement for judges at age 70. Germany allows judges only a dozen years on the bench.
Over the last decade, the idea of term limits has gotten favorable reviews from the Washington Post editorial page and the Federalist Society, a conservative legal organization.
Calls to set aside those arguments picked up steam after Chief Justice William Rehnquist died six years ago at age 81 he'd spent 33 years on the bench and again when John Paul Stevens retired last year at age 90, after more than 34 years on the bench.
The American Bar Association doesn't have an official position on lifetime tenure. But Bellows, an employment law specialist in Chicago, called the idea of ending it "disturbing."
"Our goal here is fair and impartial judges," she said, and altering the balance among the branches of government would only undermine judicial independence.
Congress can impeach and remove judges for failure to perform their duties, she noted, and in practice, judges nudge colleagues into retirement when mental capacity becomes an issue.
Perry's book, promoting limited government in particular, a less expansive federal government includes a litany of complaints about the Supreme Court. He sees "outrageous" activism in abortion and gay rights rulings and cites rulings on executions, environmental rules, and even the minimum wage.
Bellows, for one, disputes the argument that "activist" judges have contorted and ignored the Constitution. Even if Perry is right about that, she said, trading life tenure for 18-year terms wouldn't fix the problem.
"If you have 18 years on the bench and you know that nobody can touch you, why does that make you more accountable?" she said.
Paul Carrington, a Duke University law professor and former dean, who has led the effort to impose term limits, agreed that the current system breeds arrogance.
He called it "nuts" to let octogenarians run the country. "It's ridiculous to have a person sitting in a position of that much power for 30 or 40 years," he said.
Perry, Carrington said, "has a point. It may be the only point he could utter that I would agree with."
AT A GLANCE
Several other statements from Rick Perry's book "Fed Up!" have stirred up controversy. A sampling:
Social Security: He calls the retirement system a "Ponzi scheme" that's built on "unsustainable fiscal insanity," and alleges that it's unconstitutional.
Election of senators: Perry says the constitutional amendment allowing voters to elect U.S. senators, which were originally selected by state legislatures, was "a great milestone on the road to serfdom."
Federal spending: Perry decries stimulus spending and education, while Texas took billions in federal dollars under both programs.
Income tax: The governor says repealing the 16th amendment, which authorized the income tax, might be necessary to roll back federal power, and suggests a national sales tax in its place.
State regulations: He suggests that states, not the federal government, be allowed to regulate the environment, labor conditions and energy policy, and to be allowed to run retirement and health care programs such as Medicaid, Medicare and Social Security.
Global warming: Perry called scientists' theories about global warming a "contrived phony mess that is falling apart under its own weight."