Should Judges Be Elected?

[Beet]

My tone might have been a little off but meant what I said, only that and no more. My main objection isn't that politics gets inserted into judicial nominations. I agree with you that given the structure of our system, it's inevitable. My only point was that Senators should also have a right to vigorously oppose those who hold views their constituents would not like on the Court, in favor of a qualified alternative.

However, now that we are on that topic I would like to add that judicial nominations have not always been politicized. John Marshall Harlan was one of the first to face political efforts by conservative activists at his confirmation hearings in 1955-- in the wake of the Brown decision. Several Dixiecrat Senators wanted to know his views on Brown, and 9 of the 11 Senators who ultimately voted against him were from the South. Ever since then, conservatives have tried to insert politics into judiciary-- both on the confirmation and the nominating sides.

[dazzleman]

My tone might have been a little off but meant what I said, only that and no more. My main objection isn't that politics gets inserted into judicial nominations. I agree with you that given the structure of our system, it's inevitable. My only point was that Senators should also have a right to vigorously oppose those who hold views their constituents would not like on the Court, in favor of a qualified alternative.

However, now that we are on that topic I would like to add that judicial nominations have not always been politicized. John Marshall Harlan was one of the first to face political efforts by conservative activists at his confirmation hearings in 1955-- in the wake of the Brown decision. Several Dixiecrat Senators wanted to know his views on Brown, and 9 of the 11 Senators who ultimately voted against him were from the South. Ever since then, conservatives have tried to insert politics into judiciary-- both on the confirmation and the nominating sides.

I guess only conservatives have done that.  Liberals, of course, have never tried to abuse the courts to push through unpopular measures on dubious constitutional grounds, now have they?

[Jake]

I tend to side with Justice Scalia's recent remarks. If the judiciary is going to act as a force for social change and address issues outside of the scope of the Constitution, then yes, they should be elected so people know what they're getting. The confirmation hearings where the opposing party tries to pry every bit of opinion out of a nominee simply turn into absolute jokes very quickly. Might as well have them be elected so folks can choose whether they want a Republican or Democrat on the court.

[Beet]

Most Courts' liberal decisions have been the result of judges themselves reaching an conclusion once already appointed to the bench on neutral, non-political grounds.

On the other hand, most of the conservatives now on the SCOTUS were appointed on political activist grounds- the expectation that they will overturn a particular case (Roe v. Wade, for instance), no matter how deeply grounded in precedent. The latter, and onlyt the latter, is the definition of politicization of the courts.

The confirmation hearings are only a centrist response to the conservative-activist litmus test that Republican Presidents and their bases place on their nominees (look at what happened Alberto Gonzales's chances for a nomination, for example)

[dazzleman]

Most Courts' liberal decisions have been the result of judges themselves reaching an conclusion once already appointed to the bench on neutral, non-political grounds.

On the other hand, most of the conservatives now on the SCOTUS were appointed on political activist grounds- the expectation that they will overturn a particular case (Roe v. Wade, for instance), no matter how deeply grounded in precedent. The latter, and onlyt the latter, is the definition of politicization of the courts.

The confirmation hearings are only a centrist response to the conservative-activist litmus test that Republican Presidents and their bases place on their nominees (look at what happened Alberto Gonzales's chances for a nomination, for example)

You're kidding, right?  All I can say is, you appear to have a very distorted and one-sided view of things.

[Beet]

Most Courts' liberal decisions have been the result of judges themselves reaching an conclusion once already appointed to the bench on neutral, non-political grounds.

On the other hand, most of the conservatives now on the SCOTUS were appointed on political activist grounds- the expectation that they will overturn a particular case (Roe v. Wade, for instance), no matter how deeply grounded in precedent. The latter, and onlyt the latter, is the definition of politicization of the courts.

The confirmation hearings are only a centrist response to the conservative-activist litmus test that Republican Presidents and their bases place on their nominees (look at what happened Alberto Gonzales's chances for a nomination, for example)

You're kidding, right?  All I can say is, you appear to have a very distorted and one-sided view of things.

I think you may be misreading my remark.

Non-conservatives judges are generally appointed on non-activist grounds, and once on the bench they reach a conclusion that they probably didn't hold beforehand, and which certainly wasn't a precondition for their nomination. That is the case for the judges that decided most of the 20th century cases now derided as 'activist' by conservatives. Take any case... Mapp v. Ohio, Baker v. Carr, Miranda v. Arizona, Lawrence v. Texas... and you can't say that the Justices who formed the majority in those cases were nominated specifically to reach the political result that those cases implied. Rather, the judges themselves, without effective political pressure from the outside, reached those conclusions.

The conservatives judges, however, are just the opposite. They get nominated on the basis of holding some preconceived political view, and then they try and to fudge it during confirmation hearings. If (like Souter, Kennedy, or O'Connor, or Blackmun) they change their mind on the Court and hand down decisions which do not please conservative activism, they are said to have "betrayed" their backers and called all sorts of derogatory names. That is just true.

[dazzleman]

Most Courts' liberal decisions have been the result of judges themselves reaching an conclusion once already appointed to the bench on neutral, non-political grounds.

On the other hand, most of the conservatives now on the SCOTUS were appointed on political activist grounds- the expectation that they will overturn a particular case (Roe v. Wade, for instance), no matter how deeply grounded in precedent. The latter, and onlyt the latter, is the definition of politicization of the courts.

The confirmation hearings are only a centrist response to the conservative-activist litmus test that Republican Presidents and their bases place on their nominees (look at what happened Alberto Gonzales's chances for a nomination, for example)

You're kidding, right?  All I can say is, you appear to have a very distorted and one-sided view of things.

I think you may be misreading my remark.

Non-conservatives judges are generally appointed on non-activist grounds, and once on the bench they reach a conclusion that they probably didn't hold beforehand, and which certainly wasn't a precondition for their nomination. That is the case for the judges that decided most of the 20th century cases now derided as 'activist' by conservatives. Take any case... Mapp v. Ohio, Baker v. Carr, Miranda v. Arizona, Lawrence v. Texas... and you can't say that the Justices who formed the majority in those cases were nominated specifically to reach the political result that those cases implied. Rather, the judges themselves, without effective political pressure from the outside, reached those conclusions.

The conservatives judges, however, are just the opposite. They get nominated on the basis of holding some preconceived political view, and then they try and to fudge it during confirmation hearings. If (like Souter, Kennedy, or O'Connor, or Blackmun) they change their mind on the Court and hand down decisions which do not please conservative activism, they are said to have "betrayed" their backers and called all sorts of derogatory names. That is just true.

I understand what you're saying.  Liberal judicial activism is simply the result of arriving at the right decision, freed from political considerations.

Sorry, but I can't buy into that.  I believe that overall, liberal judicial activism has been highly damaging to our society.  There were a limited number of good decisions -- such as Brown vs. Board of Education (though it was made for many of the wrong reasons, and has produced little tangible good in the long run, but that's a different discussion), but in general, liberal judicial activism is highly toxic.

You are ignoring the fact that conservative attempts to reverse egregious liberal judicial rulings are completely in reaction to those rulings.  We have a branch of government that has made itself more powerful than the constitution intends, and in many cases, judges have become black-robed dictators rather than reasonable arbiters of constitutional law.

[Beet]

Most Courts' liberal decisions have been the result of judges themselves reaching an conclusion once already appointed to the bench on neutral, non-political grounds.

On the other hand, most of the conservatives now on the SCOTUS were appointed on political activist grounds- the expectation that they will overturn a particular case (Roe v. Wade, for instance), no matter how deeply grounded in precedent. The latter, and onlyt the latter, is the definition of politicization of the courts.

The confirmation hearings are only a centrist response to the conservative-activist litmus test that Republican Presidents and their bases place on their nominees (look at what happened Alberto Gonzales's chances for a nomination, for example)

You're kidding, right?  All I can say is, you appear to have a very distorted and one-sided view of things.

I think you may be misreading my remark.

Non-conservatives judges are generally appointed on non-activist grounds, and once on the bench they reach a conclusion that they probably didn't hold beforehand, and which certainly wasn't a precondition for their nomination. That is the case for the judges that decided most of the 20th century cases now derided as 'activist' by conservatives. Take any case... Mapp v. Ohio, Baker v. Carr, Miranda v. Arizona, Lawrence v. Texas... and you can't say that the Justices who formed the majority in those cases were nominated specifically to reach the political result that those cases implied. Rather, the judges themselves, without effective political pressure from the outside, reached those conclusions.

The conservatives judges, however, are just the opposite. They get nominated on the basis of holding some preconceived political view, and then they try and to fudge it during confirmation hearings. If (like Souter, Kennedy, or O'Connor, or Blackmun) they change their mind on the Court and hand down decisions which do not please conservative activism, they are said to have "betrayed" their backers and called all sorts of derogatory names. That is just true.

I understand what you're saying.  Liberal judicial activism is simply the result of arriving at the right decision, freed from political considerations.

Sorry, but I can't buy into that.  I believe that overall, liberal judicial activism has been highly damaging to our society.  There were a limited number of good decisions -- such as Brown vs. Board of Education (though it was made for many of the wrong reasons, and has produced little tangible good in the long run, but that's a different discussion), but in general, liberal judicial activism is highly toxic.

You are ignoring the fact that conservative attempts to reverse egregious liberal judicial rulings are completely in reaction to those rulings.  We have a branch of government that has made itself more powerful than the constitution intends, and in many cases, judges have become black-robed dictators rather than reasonable arbiters of constitutional law.

The funny thing is that conservatives seem unable to even agree on what they think judicial activism is-- other than decisions which they disagree with politically.

A long time ago jfern posted a NYTimes article that statistically analyzed the Supreme Court Justices' decisions and found that the conservatives on the Court were most likely to overturn laws and to overturn past precedents. Hence the conservatives were the most activist.

But then a bunch of conservatives here came on and claimed that you couldn't define activism that way- and they said you couldn't define activism at all. So either the conservatives are the ones who are the most activist, or else cries of judicial activism are just a way for conservatives to attack decisions they disagree with politically -- much as the 1956 Southern Manifesto claimed to decry "judicial activism" when everyone knows the problem the Dixiecrats had with the decision was not its jurisprudence but its results.

Yes, conservatives' attempts to overturn certain rulings are "in reaction" to those rulings. But they are in reaction to outcomes which conservatives dislike, and the result is the politicization of the nomination process.

[Sam Spade]

My tone might have been a little off but meant what I said, only that and no more. My main objection isn't that politics gets inserted into judicial nominations. I agree with you that given the structure of our system, it's inevitable. My only point was that Senators should also have a right to vigorously oppose those who hold views their constituents would not like on the Court, in favor of a qualified alternative.

However, now that we are on that topic I would like to add that judicial nominations have not always been politicized. John Marshall Harlan was one of the first to face political efforts by conservative activists at his confirmation hearings in 1955-- in the wake of the Brown decision. Several Dixiecrat Senators wanted to know his views on Brown, and 9 of the 11 Senators who ultimately voted against him were from the South. Ever since then, conservatives have tried to insert politics into judiciary-- both on the confirmation and the nominating sides.

Actually, USSC nominations have been politicized pretty much since the beginning of when the Court took its role in governmental powers.  This is not a modern-day phenomenon.

I'll give some good examples when I have more time on my hands. 

All I will say for this particular moment is that normally "conservative" justices tend to engage the most in "judicial activism" when economic matters are concerned and "liberal" justices tend to engage the most in "judicial activism" when social matters are concerned, at least historically.

[Nym90]

I agree with Beet's basic point. Liberal judges were not appointed for the purpose of achieving a certain result, whereas conservative judges generally were. It's not as though liberals said "We dislike this law, so let's go appoint judges who will overturn it", whereas that is essentially what conservatives are now saying, making it a litmus test that a justice must support the overturning of decisions such as Roe v. Wade. The judges who arrived at the liberal decisions were not appointed for the purpose of arriving at those decisions; they arrived at the decision on their own, not due to political pressure to rule that way in advance of their being nominated.

That's not to say that liberal judges or liberal decisions are necessarily better than conservative ones, just that Republicans are the ones who have made the overturning of decisions or laws a priority in their judge nominations, not liberals.

[TheresNoMoney]

No, the appointment of judges is already way too political.

[dazzleman]

I agree with Beet's basic point. Liberal judges were not appointed for the purpose of achieving a certain result, whereas conservative judges generally were. It's not as though liberals said "We dislike this law, so let's go appoint judges who will overturn it", whereas that is essentially what conservatives are now saying, making it a litmus test that a justice must support the overturning of decisions such as Roe v. Wade. The judges who arrived at the liberal decisions were not appointed for the purpose of arriving at those decisions; they arrived at the decision on their own, not due to political pressure to rule that way in advance of their being nominated.

That's not to say that liberal judges or liberal decisions are necessarily better than conservative ones, just that Republicans are the ones who have made the overturning of decisions or laws a priority in their judge nominations, not liberals.

I think that what you're forgetting Eric, or choosing to ignore, is that it was liberals who embarked upon a path of using courts to force unpopular changes upon the country.

In certain cases, this was right -- such as in the case of willful school segregation.  In most other cases, it has been wrong, in my opinion.

It should be pointed out, though, that working through the legislatures has proven to be far more productive in the long run than trying to force change through courts.

Compare, for example, the portions of the civil rights agenda that were pursued through the courts, versus the legislature.  Voting rights and integration of public accomodations were pursued through the legislature, and are firmly established, while school desegregation for its own sake, which was pursued through the courts, became mired in turmoil and violence, with the end result being no real progress in that area in the 50+ years since the (correct) Brown vs. Board of Education decision.

[Democratic Hawk]

No. By electing the judiciary, you politicise it. Politics should play no part in the 'third branch' and should be left to the executive and/or the legislature

Ideally, I don't even think the executive, and legislature, should nominate, and confirm, judges either because politicians, to some extent, have ideological agendas, which are going to determine who they nominate and who they vote to confirm or not

Dave

[Democratic Hawk]

No. By electing the judiciary, you politicise it. Politics should play no part in the 'third branch' and should be left to the executive and/or the legislature

Ideally, I don't even think the executive, and legislature, should nominate, and confirm, judges either because politicians, to some extent, have ideological agendas, which are going to determine who they nominate and who they vote to confirm or not

Considering that the judiciary should be impartial, political processes of electing or appointing judges are going to compromise that

Dave

[NewFederalist]

No. By electing the judiciary, you politicise it. Politics should play no part in the 'third branch' and should be left to the executive and/or the legislature

Ideally, I don't even think the executive, and legislature, should nominate, and confirm, judges either because politicians, to some extent, have ideological agendas, which are going to determine who they nominate and who they vote to confirm or not

Dave

If judges are not nominated by the executive and confirmed (or rejected) by the legislators then how would we get judges?

[Democratic Hawk]

No. By electing the judiciary, you politicise it. Politics should play no part in the 'third branch' and should be left to the executive and/or the legislature

Ideally, I don't even think the executive, and legislature, should nominate, and confirm, judges either because politicians, to some extent, have ideological agendas, which are going to determine who they nominate and who they vote to confirm or not

Dave

If judges are not nominated by the executive and confirmed (or rejected) by the legislators then how would we get judges?

Good question . As with lots of ideal scenarios, the solutions aren't necessarily simple

I'll need to think on that one . Given the Constitutional prerogatives of the executive and the legislators as regards the judiciary, taking it out of their hands would be a challenge, let alone determining who would appoint them in their place

Dave

[Democratic Hawk]

No. By electing the judiciary, you politicise it. Politics should play no part in the 'third branch' and should be left to the executive and/or the legislature

Ideally, I don't even think the executive, and legislature, should nominate, and confirm, judges either because politicians, to some extent, have ideological agendas, which are going to determine who they nominate and who they vote to confirm or not

Dave

If judges are not nominated by the executive and confirmed (or rejected) by the legislators then how would we get judges?

Good question . As with lots of ideal scenarios, the solutions aren't necessarily simple

I'll need to think on that one . Given the Constitutional prerogatives of the executive and the legislators as regards the judiciary, taking it out of their hands would be a challenge, let alone determining who would appoint them in their place

Dave

Then again perhaps a truly independent, impartial judiciary is an unattainable goal

Dave

[NewFederalist]

I think it is... and perhaps that is a good thing after all when you really think about it.