Ted Cruz's SCOTUS retention election idea makes him unfit for presidency, federal judge writes

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Sen. Ted Cruz. Andrew Cline / Shutterstock.com

Updated: Sen. Ted Cruz is unfit for the presidency because of his proposal to make Supreme Court justices subject to retention elections, a federal judge asserts on his blog.

Writing at his blog Hercules and the Umpire, U.S. District Judge Richard Kopf says the Texas Republican’s proposal to amend the Constitution is “extreme” and “wacko.” The Wall Street Journal Law Blog notes Kopf’s column and a law professor who questions whether it is an ethics violation.

Kopf says the framers already debated the power of the judiciary and established lifetime tenure that acts as a check on the political branches of government. “For Cruz to propose that he alone knows better and he alone knows more than the Founders reflects an ego the size of Texas,” Kopf writes.

Cruz is a Harvard law graduate and a former clerk to then Chief Justice William H. Rehnquist, the Washington Post reports in an article on Cruz’s proposal.

Cruz outlined his proposed constitutional amendment in a National Review article. “In order to provide the people themselves with a constitutional remedy to the problem of judicial activism and the means for throwing off judicial tyrants,” he wrote, “I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections.

“Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”

George Washington University law professor Orin Kerr asserts in a post for the Volokh Conspiracy that Kopf’s public stance raises an issue: Did he violate Canon 5 of the Code of Conduct for Federal Judges? The canon states that a judge should not “publicly endorse or oppose a candidate for public office.”

In comments to his article, Kopf says his intent was not to oppose Cruz’s candidacy, but to “demolish and protect us all from his intemperate legal attacks on the Supreme Court.”

In a later blog post, Kopf responded to Kerr’s mention of an appellate opinion interpreting Canon 5 by the New York-based 2nd U.S. Circuit Court Court of Appeals. If the opinion were applied to him, Kopf said, he would be in violation of the canon.

“Specifically, when I wrote that ‘Senator Ted Cruz is not fit to be president’ and when I made related assertions of unfitness for office and the like in reference to Senator Cruz as a candidate for the presidency, I crossed the line under the holding of the … opinion. I therefore violated Canon 5(A)(2) of the Code of Conduct for United States Judges. Consequently, I apologize to [Kerr], Senator Cruz and everyone else for my error.”

See also:

The National Law Journal: “Ted Olson Critiques Cruz, Scalia”

Subsequent coverage:

ABAJournal.com: “Federal judge says he will stop blogging; Ted Cruz post isn’t the reason”

Updated on July 10 to add Kopf’s blog post concluding he violated Canon 5 if the 2nd Circuit opinion were applied to him.

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