No to Electing Federal Judges or Limiting Their Tenures

A new book by a Brigham Young University professor of Political Science advocates electing Supreme Court justices. Ann Althouse reviews it for the New York Times.

This proposal, along with one favoring limiting the tenures of federal judges, gets pushed forward a lot these days. But I personally have always been opposed to both ideas. That's because the provisions surrounding the Supreme Court are definitely among the many things the Framers got precisely right, I think.

In spite of the "politicization" of the confirmation process that seems to have gained momentum in recent decades, the Constitution does allow for the justices to be somewhat insulated from politics and public opinion.

(It's naive to think that the selection of judges hasn't always been a political process. But today, the confirmation process, like everything else in our world is more overt and more subject to public scrutiny. This heightens the political component of the nomination/confirmation process.)

The Framers intended for there to be some degree of separation between the justices and the shifts in executive and legislative power and in public opinion. This was wise. The last thing we need are courts pandering to public opinion, something we see a lot at local levels, often to the detriment of anything like justice.

Lifetime appointments also allow justices to mature, grow, and change in their perspectives. Some don't like this. They hate it that people like Earl Warren grew more liberal and Byron White grew more conservative during their times on the Court. But, I see this as a good thing: The only people who never change are the dead or the functionally dead.

(I don't see O'Connor as exemplifying the ilk of justices who've undergone significant shifts in judicial philosophy over time, by the way. She came to the Court as a Goldwater conservative: one skeptical of big government, committed to states' rights, of a more libertarian bent when it comes to individual rights, a strict constructionist who looks at each case on its own. Those remained her North Stars throughout her twenty-four years on the Court.)

If it were up to me, every state and locality would adopt the approach the Framers used in the federal Constitution, a process whereby executives and legislative bodies would nominate and confirm, respectively, judges for life tenures.

Barring that preferable scenario, I'll be happy simply to conserve the system, however modifiied by custom, that we enjoy today.