Talk Elections

I've often thought that Supreme Court Justices could be elected in a nationwide election, but to a 10 year term. Thus, 2 justices would be up for reelection every 2 years, except in years ending in 0, we would have the Chief Justice up for election.

Pros/Cons to this idea? People often talk about how much they hate unelected judges imposing their will on the people, perhaps should the Supreme Court and maybe also lower court judges be directly elected? It's something worth considering.

Addendum: If a Supreme Court Justice resigns or dies, the President still gets to appoint a replacement subject to Senate approval as now, and that person serves until the next election for their seat.

I don't know about this idea. How would you respond to the criticism that this compromises the integrity and independence of the Court?

After some thought, no.  But if you were going to have elections, you should have 9 year terms and have an election every year.

That's certainly a good point, Beet. I'm not even sure if I support it myself, I mostly wanted to throw it out there for debate more than anything. Certainly the fact that justices would have to run would make them more likely to do what the people want rather than what the "right" thing to do is, if those two conflict. But it seems that a lot of people think it's gone too far the other way, and that the courts trample over public opinion to impose their own values. Having a long term (10 years) would ensure that they are still mostly insulated from political pressure. They don't have to run very often. It's somewhat of a compromise, they still have longer terms than everyone else, but the people do also have a say as well.

Yes I think there is a case to be made for giving the people their say. After all, the Court does rule on some pretty controversial topics... and once ruled upon they're generally not overturned, despite a few high profile cases. On the other hand, its interesting to note that even though FDR lost his court packing plan, he was able to change the thrust of the Court by appointing new Justices when old ones retired. Right now the Court is decently balanced, even though 7 of the 9 Justices were appointed by Republicans, because for most of the past 30 years, American has seen divided government (President/Senate not of the same party). I agree the Court is a very "lagging" indicator. I expect a couple of Justices to step down between now and the end of 2008, so this election could determine some of the new confirms.

Well, there is nothing that says that there has to nine jusges on the Supreme Court, but if you have to have elected judges they should be either elected for life or not be eleigibe for a second term.  Apellate judges should never have to worry about reelection.

Notice my post said "could", not "should".

2 appointed by the Senate
2 by the House.
2 by the President (no approval)
2 Elected directly by the people
The CHief Justice would also be elected by the people nationally.

10 year term of office, no term limit, no age restriction.

No. However I believe they should not be appointed for life, but rather 18 year terms, with a new appointee coming up ever 2 years.

One 10-year term in any one position, no re-appointment or re-election, depending on the system. So while a judge could, for example, serve 10 years on the Federal Appellate Court, 10 years on the Federal Court of Appeals, and 10 years on the Supreme Court, they could never serve for 11+ years on any one of them.

So, no re-election or re-appointment pressures on them, but also a limit on their ability to defy the will of the people.

I believe the consequences of an elected Supreme Court could be disastrous. The freedom to decide cases on their merits and not on public opinion would no longer exist.

When I hear about an elected Supreme Court, I remember how bitterly controversial Brown v. Board of Education, Roe v. Wade, Miranda v. Arizona, Loving v. Virginia, Engel v. Vitale, Texas v. Johnson, and Lawrence v. Texas were when first decided. All of those cases affirmed human freedom and the dignity and worth of all of our citizens. I cannot imagine what calamities could have occured if an Earl Warren, William O. Douglas, Harry Blackmun, William Brennan, or Thurgood Marshall was a victim of a coordinated attempt to be unseated, only to be replaced by a judge who cares not about what the Constitution says, but about what they would prefer to be our nation's policy. I daresay the legacy of Constitutional liberty, crafted by dedicated jurists, would be far less rich when the time came to pass it on to our children.

In short, for liberty to continue, the status quo must be preserved.

If judges stuck to interpreting the law as is written, instead of trying to be social activists with gavels, this wouldn't be a problem.

The solution is not to elect judges.  The solution is appoint constructionist judges.  If the laws are deemed unfair, it's the reponsibility of the people to elect legislators who will change them.  If the people don't do that... well, we get exactly the government we deserve, don't we?

How about this...
appoint judges to nine-year terms, three judges to be appointed every three years - one judge to be appointed by the president, one by the Senate, one by the House. Second term impossible. Chief Justice to be chosen by the President from those in their 7th year on the court; can't be someone he personally appointed to the court.

(Braggart points if this sounds familiar to anybody)

In my view, one of the main reasons for having the federal judiciary is to "defy the will of the people," or, rather, as I would put it, to prevent the tyranny of the majority.

No - the system is by no means perfect, even the framers knew that, but it is still a balanced system. Our government is much more democratic than it was before, we don't need it to be more democratic. Having government accountable to the people is good, but too much democracy can lead to oppression by the majority.

Also, just so people know, the number of Supreme Court justices is determined by Congress - they could change the max at any time they please.

I see nobody is interested in braggart points...

No, a majority Liberal Supreme Court is better than an elected conservative Court.  The very idea that the Supreme Court woudl become another popularity contest sickens me.  Look what it did to the Senate (not that I woudl support going back).  the quality of the average Senator has declined sharply over the past century.

And vice versa. There are many cases in which the court's decisions are unpopular. If they had re-election at stake, I think they would make a different decision.

Actually, I would be in favor of repealing the 17th Amendment and returning the selection of Senators to the states instead of the people.

The Supreme Court should remain appointed for the reason cited by Acsenray.

And, I second Ernest's suggestion. The idea behind the Senate was to give the state's representation, not pander to public opinion. The House does enough  pandering for all.

In IL the judges and justices are elected.  An elected judge serves for a term and then rather than face reelection, faces a retention vote after 10 years (6 years for circuit court judges). This takes the pressure off a judge facing an opponent, and they are able to better deal with cases without looking at  the political ramifications. The retention vote in IL requires 60% to vote in favor of retention or it becomes a vacancy.

When a vacancy occurs, the Supreme Court appoints the temporary replacement, but the vacancy is filled by election on the next even-numbered year (primary and general election).

Agreed.

Judges need to be as impartial as humanly possible.  Holding elections for judges would most likely cause them to base their rulings on the opinion of the public majority, which may have no regard for protecting the rights of individuals in the minority.

If federal judges are not performing in the best interest of the country, then Congress should use their power of impeachment.  Simple as that.

I have a question for everyone posting here.

We currently have many judges across the nation legislating from the bench. How do we stop judges from doing this? What are some solutions to solving this problem? I can not currently think of any answer.

Short of taking away judicial review from the courts, nothing(or make more state constitutional amendments, which would also be bad, amending constitutions on a whim is a terrible idea). Personally, I'd rather have the courts that use judicial review sometimes to legislate than courts that have no judicial review.

I used to think it would be a good idea to have them elected, but after reading all the arguments I reconsider. But still, I'd like to share some toughts about it:
--Many State Supremem Court Justices are elected. They're decisions seem little worse than any other State Supreme courte Justice.
--Better yet, a lot of states have their all judicial branch elected. Once again, it seems little worse than any others.
--The President in offic at the time of appionting Justices has the power to dictate something that will affect the country long after he leaves office.

If a decision is really bad, we do have an appellate system. You can go through several courts before a case is decided once and for all. I would simply suggest acceptance of Supreme Court decisions, or a reconsideration of what you think is judicial activism.

You know what happens?  Good judges who uphold the law are booted out by the people for failure to be "tough on crime."  At least, this is the case in Wisconsin.  It's bad enough when DAs are fired by the people because of low conviction rates.  When judges also have a built-in incentive to convict, it kinda undermines the whole "innocent until proven guilty" thing.


If the judges stuck to interpreting the law as written, this wouldn't be a problem.

Well, I agree the system is not flawless. But it's better to hve judges set in office by the people then by corrupt bureaucrats.


Well, the fact is they don't.

WI sounds different than IL in that respect. I've seen many judicial elections and retention votes here at the circuit, appelate and supreme court level. I can't recall any that have been about convivtion rate for criminal cases.

Circuit court elections are generally about experience vs. Bar ratings. For the retention votes, a judge is turned out in only the rarest cases, usually for unethical behavior that gets significant media attention. Even when there was an extremely unpopular decision at the circuit level a few years ago, it did not result in a failed retention bid.

Appellate and Supreme Court elections are even less about conviction. Most are judges moving up from lower courts, and at the circuit level most judges aren't in the criminal division. At best they take a rotation there. The result is again about experience and consistent approval from the lawyers who work with them.

I wish I could find some election ad archives for WI judicial races.  It seems like, whenever there's a hotly contested bench seat, the whole race devolves into which candidate is tougher on criminals.  Qualifications be damned.  We've got to think of the children!  (As if electing the other guy will somehow result in the streets being flooded with drug pushers and pedophiles.)

I'm glad IL is better in this regard.

Ok, what about this: the President would appoint someone, then he would need congressional aproval, and then, if congress aproved, he would have to be subject to a nationwide vote. A vote only Yes or No. If No won, then the process would start again. What about it?

1. It would be extremely expensive.
2. It would be extremely slow.
3. Congress already acts as a delegate of the popular will.
4. Would it really change anything?  Would it prevent judges from legislating from the bench?  I think, in fact, that they would be more likely to legislate, believing themselves to have been given a popular mandate from the American people.

All it would really do is make Americans feel slightly less resentful towards judicial activism.  It wouldn't prevent it.

(Sorry, I don't intend this to be a flame.  I just feel strongly that the judiciary needs to be independent and not subject to politics.)

Well, if that's the point, then i have a sugestion. What about getting some comitee where congress, judges and the executive branch were represented, and have it appoint the judges?

Well, besides the judiciary being independent, they also need their power checked by the other branches.  We have that: the Executive appoints, the Legislature consents.  To allow the judiciary a say in their own composition would remove a lot of that check on their power.

The thing that differentiates the courts is that they ultimately decide what the law means.  That is a tremendous amount of power.  Of the three branches, the one that poses the biggest risk of being used for a coup is the Judicial.  If you politicize the court (by making them subject to popular election) you make it far too easy for ideology to rule the day, over sound legal judgement.  Judges must be able to interpret the law as impartially and independently as possible.  Sure, ideology is going to color their judgement, but once you subject them to the whims of politics, all semblance of independence and impartiality goes out the window.  The judiciary becomes nothing more than a tool for whatever ideological majority exists to dominate the government.

Well, in that case, the congress should be given extra powers to oversee the Judiciary.
Still, I think a confirmation vote would help to secure the legitimacy of the judges. It would not need to be a 50% requierement. let's say if more than 70% of the peple rejected that judge, he woulnd't be nominated.
It's just that I have a hard time trusting politicians to appoint the judges. I think the way they act now, like Bush and Kerry are doing about pro-life and pro-choice judges is much more degradating than elected judges.

Around here you might see three candidates each touting themselves as follows:

Candidate A: I've spent more hours in a courtroom than either of my opponents.

Candidate B: I have the highest rating from the IL State Bar.

Candidate C: I'm he only lifelong resident who understands the kind of cases that will come up.

Curiously, I've seen all of these messages win in different elections.

The real reason to vote for SCOTUS is because you want your politics represented.  Result?  Partisan justices.

The whole point behind the Court is that it's a panel of legal experts out to interpret the law, not pander to certain demographics or ideologies.  Sure, there are partisan decisions, but elections would make it worse, make it explicit.

You haven't made the case that there is any need to "stop" anything. Judges in the Common Law system have always been active players in the creation of law (known as "common law" or "black-letter law" or "precedential law" or "judge-made law"). Legislation can rarely be so specifically written as to take into account all possible circumstances. Judges have to interpret the will of the legislature as well as whether the legislature's will interferes with fundamental rights. This role is especially important in preventing tyranny of the majority as I mentioned before. The term "legislating from the bench" is merely a pejorative characterization used by those who disagree with the judges' decisions.

Interpretation includes determining that a law is nullified by a higher law.  Our Constitution is simply the highest law in the land.  Declaring a law unconstitutional is still interpreting the law.


Determining that a law is badly phrased or self-contradictory is also interpreting the law.

They should have to come up for review every ten years by the judiciary commitee.

I think I'm pretty much agreeing with you here. I don't think -- contrary to the Republican line -- that the federal judiciary constitutes an out-of-control, unelected tyranny. I think the federal judiciary (except for Scalia and Thomas and except in Bush v. Gore) has pretty much doing its job conscientiously and properly over the past few decades. The courts have been doing what courts have always done with regard to interpreting and applying the law.

No, I don't believe that justices should be elected at all, but I have thought about the possibilities of appointing them for a limited term--say 10 years.  I think the we need to keep electioneering out of the judicial process at this level to protect judicial integrity. Having set terms would allow us to prevent a single president from determining the courts makeup for generations. How about this?

It is interesting that in states with appointed judges the same argument is used as in states with elected judges. In IL I often hear that it is better to elect the judges because it protects their judicial integrity, otherwise they would be beholden to the politics of the appointing power. I suspect that good judges will do well regardless of the system that produces them.

The Constitution itself was ratified by the People meeting in convention, and the same method may be used to amend the Constitution.  You are in essence arguing that the People are qualified to create and amend the Constitution but are unqualified to determine what they meant when they did so.

This is the same sort of attitude that led to the electoral college and indirect election of the Senate, that said that while men might be qualified to vote, women are not; and perhaps not all men, certainly not those who have dark skin, or don't own property.

Do they get to rule on their own elections?
That could be a problem.