When justices refuse to retire - The Boston Globe - Boston.com - Op-ed - News
Mr. Jacoby brings up an interesting analysis. My father was one of Justice William O. Douglas's treating physicians at Bethesda Naval Hospital. When you mention justices retiring, he belly laughs. Due to doctor-patient privilege, he does not say much. He just laughs when anybody says that Douglas retired. He says, "I saw that man. He retired? Yeah, right!"
One of my least favorite presidents for domestic policy was FDR, yet the one failure of his administration was the "court packing plan." As any high school history student would tell you, it was a terrible idea to pack the Court with one's cronies to change the Court's balance. Yet, if you look at the proposed approach, it would solve the complaint that Mr. Jacoby makes.
I don't remember the details of FDR's plan, but he essentially wanted to be able to appoint a new justice for every sitting justice over the age of, say 75. Using this method, Clinton would have been able to make a few more appointments during his term, and W. would have a few. This takes a lot of politics out of the Court's appointments because it would nearly guarantee that every president would make a court appointment yet it would leave the Constitution unchanged.
Is this the best solution? No, I would prefer an amendment to the Constitution that would either resemble that 25th Amendment by systemizing the removal of an infirm justice from voting status and making him capable of reinstatement, maybe with the Chief Judge of the Circuits in numerically rotating order (with the DC Circuit and Federal Circuits as numbers 1 and 2) as the temporary stand-ins. The chief judges, if I am not mistaken, have an interesting selection process by being selected by their bi-partisan peers on their respective Circuits. They have already been confirmed by the Senate. They have appellate experience of some years.
This could even be done under the Congressional authority to regulate the Supreme Court.
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