Thursday, May 13, 2010

Elena Kagan and the Supreme Court: Time to start electing justices

In this week's Scripps Howard column with my colleague Ben Boychuk, I say we don't know enough -- and won't know enough -- about Elena Kagan before she's confirmed to the Supreme Court. And I suggest we can solve this ongoing problem by forcing Supreme Court nominees to face American voters directly:

Heck no, we don't know enough about Elena Kagan. Then again, we didn't really know enough about John Roberts or any other Supreme Court nominee of recent vintage. That's the way the game is played: Smart nominees shut their mouths, still their pens and aim for an air of patriotic inscrutability. Barring scandal, they end up confirmed anyway -- and only then do we find out what they really believe. Kagan will probably be no exception.

Americans deserve to know more about the thinking and philosophy of the nominees who receive lifetime appointments to one of our nation's most powerful institutions. It's time to start putting our Supreme Court nominees to a vote of the American people.

"The Supreme Court has the power to affect lives, yet the judicial branch is unelected," political scientist Richard Davis wrote in his 2005 book, "Electing Justice: Fixing the Supreme Court Nomination Process." "In a democracy, the people should have the right to examine candidates for the court, including their views on issues that will affect the lives of citizens."

Yes: Supreme Court justices are supposed to be insulated from political pressures. The modern nominating process doesn't really work that way. The media and interest-group scrutiny of nominees -- along with the charges and countercharges, and the money spent on media campaigns -- can be every bit as intense as you'd find in a presidential campaign. We already have the politics; why not have an election? Judges in most states already face voters. Direct public scrutiny might shake up the kabuki routine of today's nominating process, and bring some much-needed accountability into the system.

Kagan might make a fine Supreme Court justice, but we can't be sure and the current process won't help us find out. Let her make her case to the American voters.

It's worth saying -- I didn't have the space in my half of the column -- that the justices wouldn't have to be completely subject to partisan pressures under this scenario. Davis in his book suggests a couple of different ways judicial selection could work, but they all involve the president making the nomination and the Senate offering a thumbs-up or thumbs-down before sending the recommendation (or recommendations: it could be a slate of candidates for the spot) to the American people for a final vote. (He also recommends justices be limited to one 18-year term, which I think might also be dandy.)

Funny thing is, I'm not really one of those guys who believes that every controversial issue should be put up to a referendum. But I think it's weird that a whole branch of so-called democratic government is oblivious to ... democracy.


Glomarization said...

Great googly moogly, man, after Citizens United and Caperton v. Massey you think the best thing to do is ELECT justices of the Supreme Court?!

By the same token: what if there's a Bush v. Gore situation, only it's a Supreme Court race?

Joel said...


A)I don't think electing justices will lead to a perfect outcome. And...

B) I think a lot of money is already poured into influencing court battles. Lots and lots and lots. Put it in the realm of elections, at least, and you might get some of that out in the open.

Besides, as it happens, the decisions about Supreme Court nominations are being made by people who are already taking tons of campaign cash, so it's not like it's a clean process now. The only thing that's missing right now are those pesky voters.

emawkc said...

Oh. boy. Has anyone bothered to look at why the system was set up as it is in the first place?

I'd rather see some kind of minimum qualification put in place before sending this to the American voting public.

Joel said...

Emaw: Maybe I'm wrong, but I think originating the nominations with the president and subject to approval from the Senate BEFORE going to the voters -- what Davis has proposed -- might minimize the dangers of a rabble-rousing demagogue ending up on the court. If I thought we'd end up with Sarah Palin or Roy Moore or Michael Moore, I'd criticize the idea wholeheartedly.