July 2, 2005

Speaking of picking a new Supreme Court Justice...

Why not switch to a system of electing them? There's a new book proposing exactly that, and I have a review of it in -- of all places -- The New York Times.


Dave said...

Not sure that it's such a bad idea to elect Supreme Court judges. But don't give them life tenure.

Not too happy with judges/lawyers today.

Mark Daniels said...

Obviously, I've not read the Davis book.

But I've always been opposed to proposals that Supreme Court justices be elected. (And, Dave, I also have to disagree with you about the imposition of any limitations on justices' tenures.)

The provisions surrounding the Supreme Court are definitely among the many things the Framers got precisely right, I think.

In spite of the "politicization" of the confirmation process that seems to have gained momentum in recent decades, the Constitution does allow for the justices to be somewhat insulated from politics and public opinion. (Besides, it's naive to think that the selection of judges hasn't always been a political process. It's just that today, the confirmation process, like everything else in our world is more overt and more subject to public scrutiny.)

The Framers intended for there to be some degree of separation between the justices and the shifts in executive and legislative power and in public opinion. This was wise. The last thing we need are courts pandering to public opinion, something we see at local levels, often to the detriment of anything like justice.

Lifetime appointments also allow justices to mature, grow, and change in their perspectives. Some don't like this. They hate it that people like Warren grew more liberal and White grew more conservative during their times on the Court. But, again, I see this as a good thing: the only people who never change are the dead or the functionally dead. (I don't see O'Connor as exemplifying the ilk of justices who've undergone siginificant shifts in judicial philosophy over time, by the way. She came to the Court as a Goldwater conservative: one skeptical of big government, committed to states' rights, of a more libertarian bent when it comes to individual rights, a strict constructionist who looks at each case on its own. Those remained her North Stars throughout her twenty-four years on the Court.)

If it were up to me, every state and locality would adopt the approach the Framers used in the federal Constitution, a process whereby executives and legislative bodies would nominate and confirm, respectively, judges for life tenures.

Barring that preferable scenario, I'll be happy simply to conserve the system, however modifiied by custom, that we enjoy today.

By the way, Ann, you raise a very interesting point in your review when you mention, rightly, that we have never had national elections in this country, that our presidential elections are really aggregations of state races for electoral college votes. The mechanics, though certainly not impossible, would be unprecedented. But more significant than the mechanics, of course, is another issue you raise: Who exactly would nominate the candidates for the Court? I think it all could be an even bigger partisan nightmare as the impending confirmation process surrounding O'Connor's replacement is apt to be.

Dave said...

Re: lifetime tenure.

I'm not convinced lifetime tenure is a bad thing, however, I think there should be some consideration of it.

It seems that lifetime tenure has angered a number of people precisely because judges have "grown" into their positions.

On the other hand, as Mark says, maybe it's a good thing that judges grow with their positions.

I suppose I'm ambivalent on this issue.

Matt said...

It was an excellent review, Ann--pointing out the very real problems with elected judges. Judge elections invariably turn into "tough on crime!" races (or at least did in TX when I lived there) even when other issues are more important. Judicial confirmation should not be referenda on single issues but aimed toward selecting someone with appropriate judicial temprament and smarts to resolve both the hard cases and the easy cases according to the law with an understanding of justice, as well as an understanding that the law does not always equal a person's understanding of justice.