We currently have eight justices on the United States Supreme Court, a condition which has persisted for quite a few months now and is likely to continue into next year. Should we somehow have another one retire, expire, become incapacitated or otherwise unavailable between now and Christmas, that number could drop to seven. The chief reason for this shortfall is, of course, political in nature, owing itself entirely to the looming presidential election. And the decision as to who will fill the current vacancy and any others to come in the future will be a political choice as well. This week at USA Today, Professor Glenn Reynolds broaches a generally unthinkable suggestion: why don’t we just cut out the middle man and start electing the justices directly?
Making a presidential election turn on Supreme Court appointments has the effect of minimizing lots of other important aspects of the election. The argument in favor of it is that it applies some degree of democratic accountability to the Court. But if you want democratic accountability, why not eliminate the middleman? Why not elect the Supreme Court?
That’s not a very popular idea: When Ted Cruz floated a much more moderate proposal — retention elections for Supreme Court Justices — pundits reacted with outrage. But maybe the real problem is that Cruz didn’t go far enough.
The idea that judges should be above politics is a good one, especially when applied to trial judges who make lots of judgment calls about things like evidentiary points that can swing a case but aren’t obvious to casual observers.
But the Supreme Court isn’t above politics — as recent history has made more than clear, it’s very much a part of politics. The extent of the importance attached to the Court in this election makes that plain and often, as in the Obamacare case, so does the behavior of the Court.
With all due respect to the Blogfather, the topic of selecting Supreme Court nominees is one where I’ve pretty much sunk into a sea of nihilism by this point. Still, it’s not as if we can do without them entirely so the subject remains relevant. First of all, there is no escaping the fact that the Supreme Court has become an entirely political beast just in my lifetime, and I’ve written about it here extensively. There are simply too many cases where an idealist would proclaim that The Law is the Law and any set of competent judges would almost have to agree on an interpretation. (e.g. What does the phrase “shall not be infringed” mean?) Many other cases are murky, not specifically mentioned in the Constitution and open to interpretation. One would expect that even the best jurists would come up with different opinions which don’t fall into a particular pattern as each is considered on its individual merits. (Is abortion a private medical procedure or a murder?) But in the preponderance of cases we are able to look at the questions, decide which resolution is the liberal one and which is the conservative response and predict how almost all the judges will respond. The evidence is clear that we have an almost entirely partisan, political court (with the exception of Kennedy the wildcard) and have had for some time now.
And yes, the Constitutionally mandated method of selecting new ones means that the problem will only get worse in the future. But a solution of suggesting we elect the justices – particularly with set terms of service – has problems which are too great to ignore. Sure, you could eliminate the confirmation circus by doing that and you’d get a new justice each time one was needed, but that doesn’t solve the issue of partisan ideologues winding up deciding all of our laws. In fact, the problem would be exacerbated. Rather than just having to convince one president and a few movable senators you were liberal / conservative enough for them, you’d have to convince the entire nation. My word… just look what happened during the primaries this year. Your final contestants for the next set of SCOTUS robes would be Mark Levin and Rachel Maddow.
And if they had to face another election every ten years, as Glenn suggests, all of their decisions would be colored by the need to win another term. It would be precisely the situation the Founders were trying to avoid. (Unless you’re suggesting having them only serve one and done, which I suppose is possible, but they would still have to talk their way into the initial ballot victory.)
All of this ignores the difficulty of ramming through the constitutional amendment required to make such a change. No, I just can’t see the benefit in such a radical change. They system we have now is unfortunately broken and I’m not wise enough to come up with a way to fix it, but electing judges just puts me off my feed entirely. It may be impossible to accomplish, but I still feel as if the oldest solution is the best: if you want better Supreme Court justices, start electing better presidents to nominate them and better senators to confirm them.