Kevin Drum - September 2011

Our Eternal Senate

| Thu Sep. 1, 2011 12:23 PM EDT

While I was writing the previous post, I happened to look up the process for amending the Constitution, and I noticed something I hadn't registered before. Here's Article V:

The Congress, whenever two thirds of both Houses shall deem it necessary, [blah blah blah] Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Huh. If that says what I think it says, it means the Senate in its current form is eternal. Not even a constitutional amendment can eliminate it or reform it unless literally every state agrees. Since 1808 has long since come and gone, that means this is the only absolutely immutable part of our national machinery, the one and only thing that can never be touched. Sort of an odd choice to be given such lofty distinction, no?

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Term Limits for the Supreme Court

| Thu Sep. 1, 2011 12:12 PM EDT

Rick Perry thinks Supreme Court justices should serve 18-year terms instead of having lifetime appointments. Jon Chait says this is a rare example of a smart Perry policy:

The current system of lifetime tenure creates real problems. Huge policy swings hinge on the simple health and longevity of Supreme Court justices. This results in very old justices clinging to their seats until a sufficiently friendly president can take office. It also gives presidents an incentive to nominate the youngest possible justice who can be confirmed, as opposed to the most qualified possible justice. And eliminating some element of the sheer randomness by which each party gets to appoint justices would tend to reduce the chances of the court swinging too far one way or another from the mainstream of legal thought.

It's hard to imagine the incentive structure for any president to propose such a reform — why volunteer to the the first president whose judicial nominees don't get lifetime tenure? But it is slightly reassuring to see glimmers of sense in Perry's platform.

Why be the first president to volunteer for this? That would depend on how it was implemented. It would require a constitutional amendment, and I imagine a constitutional amendment could affect sitting justices. So a president might agree to this as long as the amendment limited the terms not just of new justices, but also of sitting justices, starting with the longest-serving ones. That could end up working out fairly favorably.

More to the point, though, the president wouldn't get a chance to volunteer in the first place. Presidents have no role in the constitutional amendment process. Still, the same logic applies to the president's party in Congress, so that's a nit. So who knows? Maybe it could be done with the proper amount of fiddling around the edges.

But this brings up another question: why is Perry in favor of this? Is it just part of the general movement conservative outrage over "activist judges"? Perry seems to believe that term limits would "restrict the unlimited power of the courts to rule over us with no accountability," but I don't really see that. It's equally hard to see how you'd conclude that this would be institutionally favorable toward either liberals or conservatives unless you're really, really sure that your side is going to control the White House more often than the other.

Meh. It's probably a mug's game to try and dig too deep into Perry's mind here. My guess is that "judges bad, term limits good" is about as far as he's considered things. Still, for the usual goo goo liberal reasons that Chait lists, I'd support him on this. Let's hear it for term limits on Supreme Court justices.

WikiLeaks Gets Ready to Release Everything

| Thu Sep. 1, 2011 10:56 AM EDT

WikiLeaks still hasn't published the full cache of diplomatic cables that it began releasing last year. So should they? The Guardian reports:

WikiLeaks is conducting an online poll of its Twitter followers to decide whether the whistleblowing site should publish in full its unredacted cache of US diplomatic cables.

Hmmm. A Twitter poll. I wonder how that's going to turn out?

WikiLeaks appeared likely to use the Twitter responses, which it said favoured disclosure at a ratio of 100 to one, to pave the way for imminent disclosure of the remaining material from its cable archive.

Consider me non-shocked. Anyway, if you read the whole story it turns out this is apparently all part of the ongoing war between Julian Assange and the Guardian. One way or another, though, it looks as if we're all going to have access to the entire cache of cables soon enough.