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Democrats Introduce Historic Bill to Prevent GOP from Having Too Much Control Over SCOTUS

House Democrats will introduce a historic bill on Tuesday that would change the Supreme Court for the foreseeable future. The “Supreme Court Term Limits and Regular Appointments Act of 2020’’ will be put forth by Reps. Ro Khanna (D-Calif.), Don Beyer (D-Virginia) and Joe Kennedy III (D-Mass.). Its purpose is to change the process by which justices serve, leave, and are appointed to the Supreme Court of the United States. Many Democrats see this bill as a way to rein in executive power to create an increasingly conservative Supreme Court in the wake of Justice Ruth Bader Ginsburg’s death and President Donald Trump’s quick nomination of Circuit Judge Amy Coney Barrett.

Here’s what the bill would do.

1. Impose term limits.

The bill creates 18-year term limits for sitting SCOTUS justices. After a justice serves for 18 years, they’d have the option of retiring or continuing to serve on the federal bench by serving on a lower court.

2. Create a regular, recurring schedule for Supreme Court nominations.

Future justices would be added to the court in odd (non-election) years, thus allowing every president the same number of opportunities to appoint justices. The bill’s text says that the president “shall, during the first and third years after a year in which there is a Presidential election, nominate, and by and with the advice and consent of the Senate, appoint one Justice of the Supreme Court.”

3. Exempt current members of the Court.

The bill’s language specifically excludes the eight current justices. Therefore, none of our current members of the Court would be required to retire at any given point.

4. Allow for the possibility that a retired justice could rejoin the Court if needed.

The bill creates a “Senior Justice” position. This would mean that any justice that serves their 18-year term could rejoin SCOTUS if the Court ever has an unexpected vacancy and the Chief Justice deems it necessary. The same procedure already exists for federal judges on lower courts.

5. Keep the Court at 9 members.

In the event shortened presidential terms create the result that the Court would have more than nine justices appointed, new appointments would continue, and the Court would move to a first-in-first-out system. According to the bill’s text, whichever justice, “has served on the Supreme Court for the longest period of time shall be deemed a Justice retired from regular active service…”

6. Prevent a Merrick Garland situation from ever happening again.

Under the proposed language, the Senate would waive its advice and consent authority in the event that it stalls for more than 120 days. The specific language is as follows:

If the Senate does not exercise its advice and consent authority with respect to a President’s nominee to the Supreme Court within 120 days after the nomination, the Senate shall be deemed to have waived its advice and consent authority with respect to such nominee, and the nominee shall be seated as a Justice of the Supreme Court.’

Certainly, the proposal is a bold one, and the timing could hardly be more dramatic. The proposal will be put forth just weeks after an iconic SCOTUS justice died, weeks away from a presidential election, and immediately following the nomination of a new justice. Politicians and legal experts have long debated ending lifetime tenure on the Supreme Court, but this is the first time a bill has been introduced to do so via Act of Congress. In the past, changes have usually been discussed in the context of a Constitutional Amendment.

Should the bill become law, there will almost certainly be constitutional questions raised, which would likely end up before the Supreme Court itself; such a scenario would create a controversy in which sitting justices could preside over challenges to a law that would affect their institution – but not their own positions on it.

[image via Chip Somodevilla/ Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos