Senator Leahy’s Plan For Substitute Justices

Senator Patrick Leahy (D-VT) plans law to allow retired Justices to return to Supreme Court on temporary basis.

According to the Legal Time’s blog, Senator Patrick Leahy (D-VT) is planning to introduce legislation to allow retired Justices to return to the court to sit in for any Justice who has recused himself from a case. This plan may pass constitutional muster under Article 1.8.10 and Article 3.2.10, but it does not pass the “common sense” test and is definitely bad policy.

Common Sense

In the real world –private sector, for example– when someone retires from a job, they are no longer employed in that position.  If they wish to return to their old job, either temporarily or permanently, they have to be rehired.  Logically the same requirement would apply to Supreme Court Justices. They would have to be re-nominated by the President and confirmed by the Senate before they could sit on the Court.

Evidently, President Obama has recused himself (voted present) from responsibility for the Gulf oil spill. Would any Democrat like to persuade Senator Leahy to allow a recall of prior Presidents to the White House– George W. comes to mind– to oversee fixing the leak and cleaning up the aftermath? Probably not.

Any legislative attempt to change the Court in order to institute Leahy’s policy would also require a new law changing the number of Justices on the Court. There are currently nine. A Justice who recuses himself or herself from a case would still be a member of the Court and the retired Justice replacing him would bring the number to ten. If the current Court is increased to ten in order to accommodate the additional temporary Justice you would have an even number, possibly allowing for a split decision, which is the problem the plan is supposed to fix.

Bad Policy

With the upcoming retirement of Justice Stevens, there will be three Justices in retirement available for temporary recall under the Leahy bill.  They are Stevens, O’Connor and Souter. My guess is that should one of the sitting Justices recuse themselves –Roberts, for example– either Stevens or Souter would be asked to fill in for him.

Should Leahy be successful in getting his law passed, we can only imagine the political intrigue that would ensue. Every time a case, important to the welfare of the nation, was scheduled to come before the Court. Progressive Democrats and the mainstream media would be working for months in an attempt to find some excuse to demand one of the constitutionally conservative Justices recuse themselves. The Court would be in a constant state of turmoil.

When and if Leahy’s bill ever sees the light of day, Republicans must see to it that it is killed, buried and forgotten.

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