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(To read the full transcript for the entire 1-hour-50-minute interview, click here. )
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(Transcript of the excerpt on SCOTUS term limits, and age-based term limits for all federal offices, SCOTUS ethics rules. Emphases added.)
Joanne Tan:
So the other question is term limits for US Supreme Court justices: Stanford professor Larry Diamond and other highly respected voices recommend term limits for SCOTUS, which is gaining traction in the US. Some suggested the term limit to be at age 75 or three terms of six years, and the fourth term is up to six years. Stanford professor Larry Diamond, in his book “Ill Winds”, suggested limiting every SCOTUS’s term to 18 years. What do you think?
Tani Cantil-Sakauye. 1:27:45
Well, I have heard of the one-and-done, one-term-and-done idea of judicial office. And at the same time, I will say I’m open to it. I think that well vetted and discussed, I don’t see it necessarily in and of itself, that idea as a problem. Other states already have what we call “the constitutional senility rule”. We sort of joke about it. So you turn 70, if you’re a Supreme Court Justice, I think in New York, you’re out. No thing beyond 70 years of age, and I think that’s true in Florida as well.
And so I think I am, I am neither a proponent or an opponent of it, but I have to think that any solution has to be a realistic one in terms of being accomplished. And I believe that if you start talking about a constitutional amendment, if that’s I believe that may be required for purposes of changing the lifetime appointments of the federal judgeship at the United States Supreme Court level, that would be very difficult, just politically, to get on, on people, on states, to get states to call constitutional amendments to ratify that change. Because if that’s the case, if you’re looking to term-limit United States Supreme Court justices, then it raises the question of, why don’t we term limit circuit court judges and district court judges in the federal system, because they’re also unlimited. And then why wouldn’t we also, if we’re… why pick on one branch? Why don’t we also term-limit Congress? Let’s term limit house representatives terms, and let’s term limit senators as well, because the gridlock is primarily in the executive and the congressional branch.
The judicial branch has no… they don’t have gridlock. In fact, with only nine people, they move pretty fleetly, even if not in popular opinion. So if you’re going to talk a constitution amendment for a one-and-done kind of term, it raises the question of, shouldn’t we do this for all federal offices at that level? And I think that’s an important policy question that should be looked at. I don’t think it’s wrong in and of itself. It’s one of those ideas that should be vetted.
And I think you do need the input of the other branches, because there are times when presidents kind of get the opportunity to really appoint to vacancies and form the court. It just, and that seemed to have happened under Donald Trump. It hasn’t happened under a Democratic president, I think, and, well, Jimmy Carter comes to mind. He had, I think Carter had, certainly number of federal appointments, at least at the Circuit Court level, where he was able to form courts philosophically. But it’s certainly open to consideration. But if it is, it shouldn’t just be reserved for the judiciary.
Joanne Tan 1:31:03
I have no problem having term limits for all branches, you know, at different levels.
Now, ethic rules for SCOTUSes, in light of the revelation about accepting lavish gifts by US Supreme Court justice Clarence Thomas, for decades, do you think Congress needs to make enforceable ethic rules, will hold SCOTUSes responsible, since no one is above the law, if any of the SCOTUSes violate them, who would enforce the rules? And what will be the punishment?
Tani Cantil-Sakauye 1:31:39
Yes, so I think it’s an interesting legal question, it’s an interesting constitutional question. It’s a really critical ethics question. I think I joined the rest of the world and country in thinking that certainly an enforceable ethics, ethics rules should be in place for the United States Supreme Court justices, as it is for the United States Supreme Court appellate justices and United States Supreme Court, Trial Court justices, and that there hasn’t been an enforceable rules set is troubling, and it would go a long way toward helping ensure public trust and confidence in the justice system, particularly at its highest level, the United States Supreme Court.
And in California, for example, we don’t have lifetime appointments for Supreme Court justices, but we do have 12-year terms. You run every 12 years, and you run unopposed, but at the same time, we have a separate independent commission called the Commission on Judicial Performance, and we as Supreme Court justices have rules of ethics, canons and rules that we must abide if we violate them, because someone reports us, you can go before the commission, and the commission is empowered to remove the jurist from office. And the commission is made up of mostly civilians, non lawyers, non judges, appointed by – these are public members – appointed by the other two branches of government.
So when I was the Chief Justice, I had two or three appointments to the Commission on Judicial Performance, but the legislature and the executive branch had more appointments than I did, and they appointed civilians who had oversight over judges, and that, that works in California. There is no such body that I know of for the United States Supreme Court, but I think it would go a long way to actually have enforceable rules, because as you point out, what people remember about the United States Supreme Court is Justice Thomas’s big yacht trips, and gifts, and real estate while he was on the bench hearing cases, and he he’s he states that that did not influence any of his decisions. But remember, con… ethics rules are built on two p…, two pieces of two, two tenants, that there IS a conflict, or there is the APPEARANCE of conflict.
So even if I can tell you that there’s no conflict for me hearing my, my good friend’s lawsuit, I should still be recused ethically, Because even if I could be, there is the APPEARANCE that there could be conflict, which gives people doubt in the trust of the law. So whether Congress does it or not, I think, is a legal issue. I don’t know that Congress has that legal authority to set rules about that nature for the United States Supreme Court, lifetime, government – federally appointed, presidential appointed, Senate confirmed officers of the United States. I haven’t looked into that. I’m sure they have, they must think they have it, but that’s pretty drastic when another branch reaches out against the other branch’s wishes, and enforces, and sets out rules of enforcement.
When I was, when I was the Chief Justice, and I heard that the legislature was thinking of regulating the judiciary in some way like this, I would call them up. I’d call up the leaders of the legislature or the governor’s office and say, wait, wait, wait, no, don’t do this. We will craft our own rules. And then if you don’t like it, you can try to override it. So I don’t know about this Congress stepping in telling the judges what they can and cannot do. And if they do step in and tell the judges what they can and cannot do at that level, then I hope that Congress also lives up to those same rules.
Joanne Tan 1:35:41
Yes, and if not Congress, you expect either the court itself, hopefully the Chief Justice Roberts, will take that initiative and come up with something that is enforceable, or the people in the United States, they… from all states, they have to come up with a constitutional amendment, which is monumental.
© Joanne Z. Tan All rights reserved.
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