Electing the supremes

William J. Watkins, Jr. Independent Institute
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Republicans and Democrats are battling over Elena Kagan’s nomination to the Supreme Court – and for good reason.  The stakes are high.   Our political leadership realizes that the court has become the most powerful policy-making body in the nation.

The High Court makes the ultimate policy decisions on diverse matters such as affirmative action in awarding contracts and in school admissions, restrictions on abortion, the medicinal use of marijuana, gun ownership, capital punishment and the types of inventions that can be patented.

In the words of former Justice Hugo Black, the modern court claims the power “to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws” if five of the nine justices find the policy choice unreasonable or unwise.

With the court exercising power akin to that of the legislature, Americans should reconsider the Constitution’s judicial selection process. Currently, Supreme Court justices are nominated by the president and assume office upon Senate approval.  While such a system might be suitable for choosing disinterested arbiters – what the justices once were – it should not be used to choose culture warriors clad in black robes.

If the court is going to act like a policymaker, then its members should be chosen by the people – just like senators, representatives, the president, governors, state legislators, and many state judges.  I suggest that the Constitution be amended to give the people a role in selecting members of the court.  Upon a seat on the court becoming open, the president, the House Majority Leader, and the House Minority Leader would each submit one candidate to fill the slot.  The nominees would appear on the ballot for the next regularly scheduled federal election.  The people could then vote for the nominee of their choice. The nominee with a plurality of votes (if three nominees are offered) or a majority of votes (if fewer than three nominees are offered) would assume the vacant seat on the court.

Most often this system would result in two candidates being submitted inasmuch as the party controlling the White House and its congressional leadership will likely agree on the same person. Democrats would not want President Obama’s and Steny Hoyer’s picks competing for votes against a solitary Republican. However, if a president were to choose an unqualified candidate, his party has the discretion to offer a better candidate to the people.

Term limits of eight or ten years should also be imposed on the justices.  Life tenure for members of a court that claims ultimate power is a recipe for oligarchy. A permanent class of Platonic Guardians is inimical to a country founded upon popular sovereignty.  Judicial elections would be a regular occurrence and the people would be able to shape the court so that it does not trample on the people’s right of self-government.

Diehard supporters of complete judicial independence will bristle at the demise of life tenure and the insertion of popular participation into the selection process. They will point out that one of the complaints raised in our Declaration of Independence was the dependence of colonial judges.  While this is true, we must ask on who were the judges dependent?  The British executive, i.e., the King.

This complaint lead to the creation of the judicial branch as an independent department of government, but as documented by Pulitzer Prize-winning historian Gordon Wood, our forefathers “had little sense that judicial independence meant independence from the people.”

Furthermore, a reasonable independence is not sacrificed in my proposal.  While serving a term on the court, there is nothing to stop a justice from calling it like he or she sees it.  Elected justices would still serve during good behavior, just not for life.

Term limits should be likewise unobjectionable.  The idea of term limits for agents of the people is not radical or new and has roots in the Revolution.  Once the colonies declared independence, many of the new state constitutions mandated rotation in office.  Believing that power can corrupt even the best citizens, Americans reasoned that term limits were one means by which liberty could be protected. The Articles of Confederation – our first national constitution – contained term limits for delegates to Congress.  Thus, term limits for justices would be consistent with our historical tradition.

Recognizing that valid concerns exist about judicial nominees raising money to run for office, I would not oppose limitations or prohibitions on nominee fundraising.  Because the selection of the slate of judicial candidates is left with the political parties, the parties themselves could raise the money used to educate the people on their candidates’ stances and history.

The modern Supreme Court is no longer a co-equal branch of government that simply reviews grants of power to ensure that Congress is not overstepping its bounds.  Instead, the court opines on the efficacy of competing policy choices made within those grants of powers. If the court is determined to act like a super-legislator, then the people need some voice in selecting justices who serve for a definite period. Otherwise, they are ruled by unelected and unaccountable officials.

William J. Watkins, Jr., is a research fellow at the Independent Institute, Oakland, Calif., specializing in constitutional law.  He is the author of “Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy” (Palgrave MacMillan 2004).