Forum Post: A Request for Criticism and Discussion of the Idea of Popular Election of Supreme Court Justices
Posted 12 years ago on Oct. 22, 2011, 2:11 p.m. EST by Omnitank
(2)
from Storrs, CT
This content is user submitted and not an official statement
It seems most of the people who post here have strong opinions as well as knowledgeable insights into the practicality of the myriad ideas presented by posters here. I would like to hear what you've all got to say on the idea that I have considered: That Supreme Court justices should be elected by popular vote rather than appointed by congress and the President.
Here is my reasoning. To my knowledge, the stated purpose of the Supreme Court is to act as a check to the powers of congress and the President, primarily through interpretation of laws and, highly importantly, the Constitution. It seems, then, counter intuitive that the members of the Supreme Court must be selected by the President and approved by the members of congress, the two entities which their purpose is to regulate. What currently prevents these entities from selecting justices whose views coincide with those of the currently controlling party or those of the political elite in general? These justices are meant to be impartial, but there is a very clear trend among Supreme Court justices to make rulings adhering to a particular trend, as is evidenced by the frequently divisive 4-5 rulings, or rulings of a similar ratio. If Supreme Court justices were entirely impartial, would their interpretations of the law not more frequently be unanimously in agreement?
I propose that this flaw in the system may be able to be resolved through initiating direct popular election of Supreme Court justices. This would ideally revive a lost check and balance to our political system. What thoughts do you all have on the practicality and effectiveness of this idea?
Perhaps not elected, but appointments with limited terms? I think our SC Justices should have to disclose ALL personal and professional affiliations as well as financial and political affiliations prior to and throughout their service. Additionally, family affiliations need to be transparent, e.g., Clarence Thomas and his lobbyist wife. If their vote to open the vault doors of justice to purchased political systems through uncontrolled political contributions, I think we see their colors quite clearly.
I agree with hairlessOrphan and would add that most Americans would rather not know whats going on as long as it doesn't affect their table.
No.
From a high-minded theoretical standpoint: the Supreme Court acts as a check against the President and Congress, but Congress and the President also act as checks against the Supreme Court.
From a practical standpoint: popular voters by and large do not have the ability make the distinction between interpreting existing law and formulating policy. I am not dissing voters, I am just making an empirical observation based on existing examples of where judges are elected. If we allow the Supreme Court justices to be elected, you will get what you get in the lower courts where judges are elected: politicization. Judges who actually follow the law as it is written get voted out by people who think the judges should be directing policy instead of interpreting it. The whole reason for judicial review AND the check-and-balance system is undermined.
I must concede that you make an excellent point. Your insight, particularly the fact that Congress and the President are meant to act as checks to the Supreme Court (A bit of knowledge I possessed, but failed to integrate into my thinking), has already made me recognize that my proposal is not entirely sound.
However, I am strongly convinced that our current system is not ideal. Perhaps it cannot be improved upon, and I will attempt to reformulate my ideas to address the points you have brought up.
I am curious, as I am given the impression that you are a skilled thinker in regards to politics, however, if you yourself agree on that the method of electing the Supreme Court as it currently stands is flawed? If so, do you have any suggestions that may be made to improve upon the system?
I agree that our system isn't ideal. But I identify the problem not with the formal rules, but with their execution. In other words: I don't think it's a problem that the President nominates and Senate confirms. I think it's a problem when the President nominates with the wrong incentives (ex: political leanings), and the Senate confirms with the wrong incentives (ex: political leanings).
I don't have a solid solution, and I don't think I can come up with one alone. I do think the conversation should be had, and my initial contribution would be in trying to diagnose the specific problem. Is there any way to enforce proper incentives? Without relying on a "good faith" effort by the President and the Senate? I am not sure. It may be that a fundamental necessity is to encourage "good faith" governance - for example, by removing financial incentives for politicization - and then hoping for the best. Or I might be thinking along the wrong rails in this.
Great idea - Perhaps a petition would be needed or some sort of popular vote to stir interest and opinions?
I do agree with the sentiment that a petition may be necessary to elicit opinions on the matter. However, although I have proposed this idea, I have yet to hear opposing viewpoints on it. Therefore, I do not yet feel that a petition would be warranted. Before undergoing the type of effort that would be necessary to spread the word on such a topic, I feel it is prudent to allow others an opportunity to voice dissenting opinions as to its value. However, I do find that getting those opinions is perhaps more difficult than anything else in the whole process. Hopefully more people will say what they have to say on the issue.
Maybe the solution would be to open the court appointments to non-lawyers. And maybe to mandate inclusion of younger minds to the courts. Right now our judges are chosen by the Pres according to how well their past rulings agree with a present party line. This means a point of view that is old will be in place on the court for at least 20 more years.