Kavanaugh confirmation, Supreme Court term limits among topics at Conversation Series


LENOX — There were few seats to spare Thursday night at Shakespeare & Company's Elayne P. Bernstein Theatre, where legal experts shared their thoughts on the power of the U.S. Supreme Court in a polarized era, a dialogue that has taken place across the country in response to the recent controversial confirmation process of Justice Brett Kavanaugh this month.

Pulitizer Prize-winning journalist Linda Greenhouse of The New York Times and retired Massachusetts Supreme Judicial Court Judge Francis X. Spina discussed the possibility of term limits for Supreme Court justices, changing the number of judges on the bench, and how they think the acrimony of Kavanaugh's confirmation will affect the court.

"That, we don't know," Greenhouse said about Kavanaugh's impact on the court. "What we do know is that nobody can accomplish anything in the Supreme Court of the United States unless they get four people to agree with them. That forces people to act like grown-ups."

The sold-out event, part of the Berkshire Eagle's ongoing Conversation Series, drew a mostly senior crowd, including many local lawyers.

On Kavanaugh, Greenhouse suspects that the other justices likely will move on from the polarized confirmation process, since they will have to spend the rest of their judicial careers working together.

"It's not an outsider coming in," said Greenhouse, who covered the court for more than 30 years at the Times. "He's a fellow judge, a member of the D.C. circuit. That will ease that transition."

Spina, who served on Massachusetts' Supreme Judicial Court — it's the state's highest court — for 17 years, said that he never had seen that kind of controversy in the appointment of a judge to that bench.

Here, he said, potential court justices are vetted by the Governor's Council.

"That kind of acrimony, at least in Massachusetts, has deterred a lot of good, quality candidates from judgeships," he said. "They just don't want to put themselves, their families, through that."

Speaking on the political aspects of the Supreme Court bench, Greenhouse said what is unique to this court is that all of the Republican judges have been nominated by Republican presidents and all of the Democrats on the bench have been nominated by Democratic presidents.

"That has not been the case in the past," she said. "We always had people on the court who were diverging from the political platform of the president."

Greenhouse also pointed to studies that have shown that Supreme Court justices who move more left on the political spectrum when they arrive on the bench typically come from outside the Washington Beltway, and those who don't typically have come from careers in Washington.

"These people are not going to change their basic orientation," Greenhouse said of the justices who are "creatures of Washington."

"Has the time come for term limits?" Berkshire Eagle co-owner and Publisher Fredric Rutberg asked the panelists.

There has been much discussion of whether to impose term limits, or a mandatory retirement age, on Supreme Court justices, but it would be tricky to achieve, since their lifetime appointment is written into the Constitution, Greenhouse said.

Scholars, she said, tend to use 18 years as a potential term limit.

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If each justice served 18 years, it would eliminate the randomness of presidential appointments, because each president likely would get to appoint two judges during their term in office, she said.

On the flip side, it could make the potential for a Supreme Court appointment be the dominant voting issue during a presidential election, she said.

Spina shared a story from when he was in law school, before Massachusetts imposed a mandatory retirement age of 70.

His roommate was giving an oral argument in front of an elderly judge in Cambridge and, throughout the hearing, the judge was pointing to an imaginary man in the courtroom and ordering him not to read a newspaper in his courtroom, Spina said.

"My roommate looked over to where the judge was pointing and said, `With all due respect, that's my raincoat," Spina said. "Massachusetts used to have it so you could sit on the bench until you dropped, and this guy had dropped."

Rutberg also asked whether the panelists thought Kavanaugh, because of a Law Review article he wrote about presidential power, should recuse himself from the case if President Donald Trump were to be indicted.

Some have pointed to this writing as a signal that Kavanaugh doesn't think the president should face criminal prosecution or civil lawsuits, were the occasions to arise.

Neither Greenhouse nor Spina think that Kavanaugh would need to recuse himself simply for his article.

Greenhouse said she was made "quite uneasy" with how the opposition to the Kavanugh confirmation framed his stance on presidential power.

The article, she said, was published during the Obama administration and took a mainstream view on the issue.

"It's never been clear if a president can be indicted," she said.

Toward the end of the event, one guest asked by notecard if the president is capable of pardoning himself of a crime.

"I don't know," Greenhouse said.

"None of us know," Spina added.

"He can try," Rutberg said with a chuckle. "That's the only way we'll find out."

Haven Orecchio-Egresitz can be reached at horecchio@berkshireeagle.com, @HavenEagle on Twitter and 413-770-6977.


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