Government & Law

Do We Need to Rethink the Supreme Court?

September 3, 2018

This is a timely question.  The polarization that that has griped our politics and the electorate is now impacting the Supreme Court.  Liberal and conservative factions fight over the ability to appoint judges.  Each side wants its views, values and beliefs enshrined in the court for generations.  Appointments are not about finding and appointing fair minded jurists with moderate as opposed to extreme views.  What are we seeing – the politicization of the selection process, very young candidates with extreme views, and obstruction of the appointment process to achieve political ends.  This is certainly not what was intended by the founding fathers.

So how to fix this?  There have been a few suggestions:

  1. Do nothing.  Most men/women, given a lifetime appointment, will put the interests of the nation ahead of politics and all will be fine.  There have been instances where a new justice expressed opinions that differed significantly from the expectations of the politicians that pushed for the confirmation. But, no guarantee.  This has been the exception.
  2. Change the lifetime tenure.  The world and our society in particular evolves over time.  Our values and priorities evolve.  Technology constantly introduces new products and behaviors into our lives.  So shouldn’t the court change to allow for the new values and priorities to be considered in the contemporary perspective?  There are 9 justices so a 19 year term would mean one justice appointment every 2 years.  Each President would appoint 2 justices over his/her 4 year term.
  3. Elect vs. appoint.  The common argument against electing is that it is too subject to politics.  The fact is that our current appointment process is almost hopelessly politicized.  Also, most state supreme court justices are elected and that seems to work.  To protect an electoral process there have to be assurances that only qualified candidates can appear on a ballot.  So why not let the Executive vet and nominates say, 3 to 5 candidates , that would have to be consented by the Senate but with a super majority (say 60% to ensure debate and less political games).  These nominated and consented candidates would then appear on the ballot.

As with many of our discussions, the process will take time.  In this case a constitutional amendment.  Making this happen is not easy (by design).  To go down this path we have to start, as in other discussions, by finding and electing representatives that not only represent the true interests of the constituency, but can can put Nation over politics – a mean task indeed!

Photo by WEBN-TV

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