Judicial elections, democratic appointment (e.g., senate confirmation), and the Missouri Plan (a/k/a "merit selection")

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Thursday, October 18, 2018

Republicans "Take Democrats' Lunch Money" on Post-Kavanaugh Judicial Selection

Liberal advocacy group Demand Justice charges Democrats “didn’t just get stuffed in a locker here; they had their lunch money taken,” in failing to delay confirmation hearings for lower federal courts. Good response that Dems secured an agreement to prevent confirmation of judges before the election but lack the power to prevent confirmation hearings now, and thus actual confirmations during the lame-duck session after election.

One of the judicial nominees, Allison Rushing, is 36 years old, and 11 years out of law school.

Thursday, October 11, 2018

Progressive Arguments on Judicial Selection

The progressive Brennan Center has published Choosing State Judges: A Plan for Reform by
Alicia Bannon. It:

recommend[s] that states do away with state supreme court elections completely. Instead, justices should be appointed through a publicly accountable process conducted by an independent nominating commission. Furthermore, to genuinely preserve judicial independence, all justices should serve a single, lengthy term. No matter the mechanism by which they reach the bench, be it an election or an appointment by the governor or legislature, justices should be freed from wondering if their rulings will affect their job security. 

 I support this "single, lengthy term" view of judicial retention, but think much is lost in the Brennan Center's vague "A judge’s job is to apply the law fairly and protect our rights." This phrase can mislead people into believing that judges merely apply law made by someone else (constitution, statute) rather than make law, which judges have been doing for centuries in making the common law and in interpreting vague provisions of constitutions and statutes. The problem with advocating "an independent nominating commission" is hiding from the public the inevitable lawmaking function of judges (particularly state supreme court justices) and thus allowing powerful insiders (typically the bar) disproportionate power. Several states even go so far as allowing the bar to pick some members of the supposedly "independent" nominating commission. 

Wednesday, October 3, 2018

Will Divided Government Ever Again Confirm a Supreme Court Justice?

Republicans were guilty of "denying Obama his constitutional right to appoint a Supreme Court justice with almost a year left in Obama’s term," according to Thomas L. Friedman's column in the New York Times today, which links an NPR story saying: “Supreme Court picks have often been controversial. There have been contentious hearings and floor debates and contested votes. But to ignore the nominee entirely, as if no vacancy existed? There was no precedent for such an action since the period around the Civil War.”

Friedman writes:

In a speech in August 2016, McConnell boasted: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.’”

That was a turning point. That was cheating. What McConnell did broke something very big. Now Democrats will surely be tempted to do the same when they get the power to do so, and that is how a great system of government, built on constitutional checks and balances, strong institutions and basic norms of decency, unravels.

Possibly, but I'm not so sure. I wonder if presidents will still be able to get justices confirmed by opposing-party senates if the president offers deals like "Vote for my SCOTUS nominee and I'll sign your bills on immigration and taxes." Such deals would be an example of the "logrolling" long central to the sausage-making of legislation.