Politics & Policy

Breaking Down Ted Cruz’s Plan for Supreme Court ‘Retention Elections’

(Photo Illustration: NRO)

The Right found itself thoroughly defeated at the Supreme Court earlier this month, and Senator Ted Cruz offered one of the biggest and boldest proposals in response: Force Supreme Court justices to run for reelection every eight years.

“I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections,” Cruz wrote in an NR piece last week. “Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”

The specific details of the proposal remain unresolved, and they’re important: Would current Supreme Court justices get grandfathered in and be exempt from the retention elections? Is a “national election” a presidential election or a midterm election? What if a judge has a majority but that majority comes from running up high margins in fewer than 25 states? How quickly would a rejected judge need to resign?

Most important of all, at a time when Republicans find winning 270 electoral votes in a presidential race challenging, how could conservatives be sure that the justices they prefer — Scalia, Thomas, Alito — would be retained under this proposal?

For now, the Cruz camp says it isn’t ready to address these questions. “He is working on drafting legislation for retention elections, with the expectation that we will be introducing that,” says Brian Phillips, Cruz’s director of rapid response. He says Cruz had been contemplating the issue of reining in judges who read their personal ideological preferences into the Constitution for a long time, and this is only one of several options he’s examining.

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Conservative legal minds, while generally warm to Cruz, aren’t yet embracing the idea with open arms.

“If we are going to tweak the Supreme Court because it’s not sufficiently responsive to the people, adding an election element isn’t the way to go,” says Ilya Shapiro, the editor-in-chief of the Cato Supreme Court Review. Shapiro says he’s not a fan of judicial elections because he believes they reduce the judiciary’s independence, although he prefers them to judicial-nomination boards, which tend to become dominated by trial lawyers and other special-interest groups.

“If the federal judiciary were to borrow a structural element from the states, I’d go with term limits rather than retention elections,” Shapiro says, pointing to a plan proposed by Steve Calabresi, one of the founders of the Federalist Society, to institute staggered 18-year terms for Supreme Court justices, with a new vacancy arising every two years. That system would guarantee each president two appointments, and end the practice of justices remaining on the court for three decades or more.

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Hans A. von Spakovsky, head of the Heritage Foundation’s Election Law Reform Initiative, fears retention elections wouldn’t really have the impact Cruz seeks.

“States with retention elections have found they are not a good substitute for regular election contests,” von Spakovsky says. “Even when a judge is atrocious, it is too hard to raise money or get critics involved in trying to fight someone who doesn’t have an opponent. While I like judicial elections, I don’t think they are practical for the federal system and the hundreds of judges we have, including the Supreme Court, and it would be very odd to have elections for only one small portion of the federal judiciary.”

One conservative legal mind who does find Cruz’s proposal a useful starting point is John C. Eastman, the former dean of Chapman University and a former law clerk for Justice Clarence Thomas.

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“I like it better than some of the proposals I’ve seen to limit the terms or age of justices, because I think neither of those actually address the problem of judicial overreach,” Eastman says. “I do think it is a serious proposal to restore some balance to our imbalanced separation of powers, [though] I fear that a retention election — as opposed, say, to a recall election — might swing the pendulum too far in the other direction.”

Cruz’s proposal, whatever its flaws, is at least a response to the altered political landscape on the issue of judicial nominees.

Eastman says the judiciary is meant to be “independent, but restrained” and that retention elections may make the Court “more of a majoritarian response body than is appropriate.” He says another option worth exploring is “a loosening of the impeachment standard for judges, one that is arguably more in line with the original understanding of the Constitution’s text.”

Cruz’s proposal, whatever its flaws, is at least a response to the altered political landscape on the issue of judicial nominees. After what von Spakovsky calls “the worst week of Supreme Court decisions I can remember since I’ve been in Washington,” the standard claim of GOP presidential candidates that grassroots conservatives need to elect them to ensure the nomination of strict constructionists no longer holds water. The argument grew shaky as Justice Sandra Day O’Connor’s term progressed and even shakier after David Souter’s philosophies became clear, and it simply doesn’t hold water after justices John Roberts and Anthony Kennedy voted with their Democrat-nominated counterparts on high-stakes cases.

#related#Ultimately, von Spakovsky says, conservatives need to find, nominate, and confirm justices who won’t be intimidated. Republicans “should only nominate individuals who have proven they are conservatives in hard fights in court, in academia, and in the public square, and have stood up to attacks and the kind of unfair, low-handed criticism that is typical of the mean, vicious Left, and have not backed down.”

Difficult as that sounds, it’s probably easier than making Cruz’s amendment a reality. As with any proposed constitutional amendment, the procedural climb ahead is steep; the amendment must be passed by a two-thirds majority vote in both the House of Representatives and the Senate and then ratified by three-quarters of the state legislatures.

“Like all modern proposed constitutional amendments, I wouldn’t bet on it gaining traction,” Shapiro says. “Personally, I’ve long said that the only constitutional amendment we need is adding ‘and we mean it’ after every sentence.”

— Jim Geraghty is the senior political correspondent at National Review.

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