We Can Do Better Than This

We weren't going to "solve" most of the problems of America in Biden's first 100 days. Nor were we going to "defeat" Trumpism once and for all. Rome wasn't built in a day. Our democracy can't be rebuilt in 100 days--or even a thousand.
So: Patience. Intelligence. Determination.

— Bill Kristol (@BillKristol) April 25, 2021

No slight on Mr. Kristol's comment, but if I could get rid of two obnoxious phrases from our political lexicon, they would be:  "100 days" and "court-packing."

Oddly, both are remnants of the FDR Administration.  I don't know what that means except I'm quite sure there are few among us still alive today who remember FDR as President at all, much less remember his first term (where the "100 days" cliche came from).  But we all treat both phrases as if they were straight from the Bill of Rights (the only part of the Constitution that matters.  Right?).

I actually heard a "pundit" on some panel or other recently declare that Biden's promise of 100 million vaccines in arms in 100 days was never a big thing, although 200 million in that time frame (less, actually) could be regarded as significant.  I'm old enough to remember when Biden made that promise (playing into the "first 100 days" meme which we all know is part of Art. II of the Constitution), and the press and pundits all declared it an impossible goal to meet.

Trump matters.  Unfortunately.

But is "100 days" a milestone for anything in a new Administration?  Already we're speculating (it began on January 20, if not before) that Trump will run again (no, he won't.  He won't be interesting by then (he won't risk losing), and he'll probably be tied up in civil and criminal actions.  The former he's faced before; the latter will be something he's never experienced, and it won't be nearly as easy as fending off civil suits.  But I digress....), something that can't happen for almost four years.  Is 100 days really a measure of anything?  Or is it just something for Sunday morning TV shows to talk about because....they need something to talk about?  Yesterday Chuck Todd discussed Biden's "approval rating" before his 100 days expire as if it were a Constitutional benchmark.  Who cares how people feel in the first 100 days?  Is that more or less important than how the feel on day 101?  Day 200?  Day 365?

And "court-packing."  There literally is no such thing.  Yes, I know the GOP has grabbed it as their next grounds for attacking Biden (governing is hard!  Let's you and him fight instead!).  But the press started using it, again as if it were the legal term for changing the number of Justices, the moment the idea was floated and taken seriously.  "Court packing" is not a legal term, it's a derogatory one.  It's not neutral, it's negative.  It's not objective, it's slanted. 

The Constitution does not set the number of Justices on the Supreme Court.  That decision is left to Congress.  In fact, this is entirely what Art. III has to say about Justices and federal judges:

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 Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

That doesn't even establish that judges/justices have a lifetime appointment.  The judges decided that's what they got, and everyone has gone along with it, which is, as they say, nice work if you can get it.  Actually I understand lower court justices are moved off 'active duty' after a certain age, which can make way for new appointments, so effectively they are "retired," even if they aren't.  Lifetime appointment does not mean you cannot be required to step away from active duty whether you want to or not; except on the Supreme Court, again because everybody says so.

Or do they?

The Court has taken upon itself the prerogative expliclitly extended to Congress:  it gets to write its own rules for who stays on the Bench and for how long. The Constitution doesn't give them that authority, but they do; and that's near enought for dammit. The difference is the Justices never face the electorate to keep their position, and they cannot be forced even to recuse themselves from a case if they don't want to.  And the houses can vote to remove members, something I don't think they Court thinks it can do.  The Justices certainly can't be forced to retire.  Well, not by the other justices, nor by a committe comprised of lower court judges.  Congress, however, could do it.

Increasing the size of the Court is one option.  Forcing Justices to retire just as we effectively retire lower court judges, is another.  Neither of these options are illegal, improper, or unconstitutional.  Whether we the people think they are good ideas (either or both) is another matter.  I think it's quite clear life expectancy among professionals like judges, is only going up.  That does not mean they are competent at an advanced age or that they should be left on the bench until they leave feet first.  In the favorite phrase of conservatives today, it's clear that's "not what the Founding Fathers intended."

Anymore than they expected a POTUS to tremble the earth and solve all the nation's problems in the first 100 days of a four year term.

We can do better than this.