When those old boys wrote our Constitution back in the 18th century, they did quite a good job. They realized that they had no hope of agreeing on what to do about one of the worst festering sores of the thirteen colonies — slavery — so they dexterously side-stepped that issue, leaving it to be decided, later on, by a heart-rending war. They couldn’t quite make up their minds about guns, so they wrote an amendment which either says that any clown can possess any gun he likes or, alternatively, that nobody can own a gun unless he belongs to a well-ordered militia, leaving it to later judges to decide which was meant. (As we know, they decided wrong.) By and large, though, they did get most things right.
Which makes you wonder why in heaven’s name they got so indefensibly wrong on the question of tenure for Supreme Court justices? When one of those critters is appointed he has no further job worries, ever. His appointment is for life.. Even if he is Antonin Scalia, who rejoices in partying with people who are likely to be at issue in a future Supreme Court case.
It would be theoretically possible, under the law, to impeach and ultimately remove a Supreme Court justice, but such an effort is so difficult that it has never happened. It isn’t even clear what a Supreme Court justice would have to do to be impeachable, since the Supreme Court, alone of all American federal courts, is not covered by the Code of Conduct for United States Judges.
Scalia will be remembered as the justice who, three weeks after the Supreme Court put former Vice President Dick Cheney’s wrapped-in-secrecy energy task force on the docket for investigation, promptly accepted the vice-president’s invitation to a spot of duck-hunting, including free transportation in Cheney’s personal jet. That wasn’t the end. His latest caper is to accept an invitation from the Tea Party to be the speaker at a closed-door seminar at its first Conservative Constitutional Seminar this month.
Since such a seminar deals with the very basis of the Tea Party’s reason for existing it would seem that participating in it, as described, would require Scalia to recuse himself in any future case involving the Tea Party’s basic actions. This, of course, is not likely to happen. Scalia is not a frequent recuser.
Which is why it would have been better if our Constitution writers had been a trifle less generous with tenure. We could have lived with, even, something like a 25-year term of office. That would give any appointee quite a lot of time to leave his stamp on America’s history of jurisprudence — and in the case of Antonin Scalia, who took his seat as a Ronald Reagan appointee on 26 September 1986, leave the rest of us to risk the flights of this headstrong man for only another few months.