During the Democratic debate Thursday night, Bernie Sanders proposed an idea that simply is not within executive (or legislative) authority to do. He wants to “rotate” Supreme Court justices and other federal judges, apparently whenever the president wants to do so. This is both constitutional dubious and a terrible idea pragmatically that would backfire on the Democrats badly. He said:
Sen. Bernie Sanders (I-Vt.) on Thursday night floated the idea of rotating Supreme Court justices to other courts to bridge the current ideological divide.
“I do not believe in packing the court,” Sanders said during the second of the first two 2020 Democratic presidential debates. “We’ve got a terrible 5-4 majority conservative court right now. But I do believe constitutionally we have the power to rotate judges to other courts and that brings in new blood into the Supreme Court and a majority I hope that will understand that a woman has a right to control her own body and that corporations cannot run the United States of America.”
I don’t know what constitution he’s reading but it isn’t the US Constitution. Our constitution says that Supreme Court judges — all federal judges — have life time appointments. Article III says:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Notice that the lifetime appointment is for the offices they are confirmed to, not just to any spot on the federal bench. There is no authority for the president to decide that he’s just going to demote a Supreme Court justice to an appeals court or district court judge and elevate a lower court justice to a seat they were not confirmed to. There’s simply no way to make this constitutional.
But as a practical policy matter, it’s also a terrible idea that would blow up in the faces of Democrats. Do you think for a moment that a Republican president would hesitate to demote all the liberal justices and elevate the most conservative judges to the Supreme Court? After what they did to Merrick Garland, I put nothing beyond them. Shamelessness partisanship is their modus operandi in all situations these days.
Frankly this sounds like something Trump would come up with, an executive power grab that is simply unprecedented and audacious.