Supreme Court judges: elected positions versus presidential appointment

Clause 2 of the United States Constitution outlines the process whereby the President of the United States is entrusted with the responsibility of selecting the Supreme Court Justices: "The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States." Because unlike other public servants, Supreme Court Justices serve for life, their appointments need to be considered carefully. The general public cannot be trusted to make decisions this important with proper care and consideration. The most recent election of Donald Trump further proves this to be the case. Even though presidential appointments are problematic in their own way, they still remain the best solution to protect the system of checks and balances.

The recent fiasco with the opposition government stymying the President's Supreme Court nominees shows that the procedures whereby the Justices are approved and confirmed needs to be revised. That does not mean the decision should revert to the people. The election of state judges shows exactly how problematic public elections for members of the judiciary can be. As Zeder (2012) points out, 90% of state judges must run for office. Those elections are costly and often sullied by extraneous political issues. With few exceptions, the general public has no idea what a good, professional, experienced judge looks like on paper. A judge's peers, however, do know. There is a "good-faith logic" in holding public elections for county and state judges, which does provide a balance of powers given that the Supreme Court is the ultimate court of appeals (Zeder, 2012). If the Supreme Court were publically elected too, that would mean that no member of the judiciary would remain stalwart and independent from the fray and whims of fluctuating public opinion.

The system of checks and balances depends on the Appointment Clause. The people do not directly elect the president. They do directly elect members of Congress. The people indirectly elect the president, who then directly appoints the Justices. In other words, each of the three branches is elected differently. No two of the three branches receives its power or appointment in the same way, a situation that is integral to their power sharing capacities. If the public directly elected the Supreme Court, the members of the Supreme Court would veer closer in the direction of a legislative body, which it is not designed to be. Doing so would undermine the fundamental feature of the Supreme Court, its purpose as the final court to determine the constitutionality of local, state, and federal law. The Supreme Court needs to remain distinct from the other branches of government and not subject to temperamental swings in the electorate. The social norms and values that change more gradually over time are, however, reflected in the Supreme Court. Supreme Court decisions reflect these generational changes, as when Brown v. Board of Education overturned Plessy v. Ferguson from the previous generation. Although the public might prefer a swifter response to social change, some changes may be unwanted, such as the potential changes to laws that might ensue if the Trump nominees end up being Christian conservatives. The Republican majority in Congress would smoothly slide in a conservative judge, leading to a situation where the next several generations of Americans may be bereft of their civil liberties. This is an unfortunate situation, but one that is to be expected under the circumstances. In the future, what should change are the regulations surrounding the types of hold-ups that Obama has had to contend with, not the Constitution itself. Another possible solution to the problem would be to reverse the method by which the President appoints the justices, mandating that Congress make the selections first and the President has the final say, instead of the other way around, which is creating the problem with seat vacancy.

Arguments in favor of direct election of Supreme Court Justices do seem cogent. Appointments reek of elitism and open the door for political corruption and cronyism. Appointments do diminish the power of the people, whereby direct elections entrust the people with the responsibility to choose the judges that most reflect their values. The appointment of judges theoretically ensures their "impartiality," something that is in itself a debatable issue given that no human being can be truly impartial. Furthermore, the justices appointed by the president are obviously people who the president agrees with politically, leading to situations where the character and composition of the Court mirrors that of the president who selected that court, with repercussions that reverberate throughout the generations. However, a closer examination of the direct election argument reveals that it has some flaws. The direct election of judges can be just as problematic, if not more so, because the only judges who would get elected would be ones that craft good marketing campaigns to win popularity contests, not ones that are actually good judges.

For example, elections could in theory prevent conservative judges from passing legislation that restricts civil liberties, and yet, the recent election shows that a significant proportion of Americans are stupid and cannot be trusted. Americans have no idea what qualities to look for in a judge, and would vote for judges based on their television commercials, what their church tells them, or what their conservative radio talk show host tells them instead of based on how accomplished the person's career had been until that date. Americans cannot be trusted to pick a president, let alone Justices who serve for longer than the President. The Appointment Clause does more good than harm and Supreme Court Justices should continue to be appointed by the President.

References

United States Constitution online: http://constitutionus.com/

Zeder, J. (2012). Elected v appointed. Harvard Law Today. July 1, 2012. Retrieved online: http://today.law.harvard.edu/book-review/in-new-book-shugerman-explores-the-history-of-judicial-selection-in-the-u-s/