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October 20th, 2017

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We should elect Supreme Court justices

Glenn Reynolds

By Glenn Reynolds

Published Sept. 19, 2016

We should elect Supreme Court justices

Hey, remember Merrick Garland? He's the guy President Obama nominated to fill the Supreme Court seat vacated after Justice Antonin Scalia died. It's been six months, and his nomination isn't going anywhere at least until after the election. It could easily be March - a year after Garland was named - before the seat is filled.

It's not going anywhere because the Supreme Court is extremely powerful, and an appointment is, almost always, for life. Thus the stakes on filling any vacancies become huge: Just one vacancy and appointment can switch the court from 5-4 on an issue (or many issues) to 5-4 the other way. And, as former Justice William Brennan, Jr. used to say, with five votes "you can do anything around here."

As the Supreme Court, once a body that mostly ruled on purely legal questions, has gotten more and more involved with every aspect of American life, the Supreme Court appointment process has become more political. Senate confirmation used to be almost pro forma, without even a hearing. Then we got hearings, which have now turned into political circuses of their own. (Remember Clarence Thomas?)

Even the election of a President - the most important selection that we make as a nation - has become about the Supreme Court. Partisans of both Donald Trump and Hillary Clinton have argued that, whatever the flaws of their own candidate, the importance of not letting the other side make potentially transformative Supreme Court appointments is reason enough to stand behind him or her.

Making a presidential election turn on Supreme Court appointments has the effect of minimizing lots of other important aspects of the election. The argument in favor of it is that it applies some degree of democratic accountability to the Court. But if you want democratic accountability, why not eliminate the middleman? Why not elect the Supreme Court?

That's not a very popular idea: When Ted Cruz floated a much more moderate proposal - retention elections for Supreme Court Justices - pundits reacted with outrage. But maybe the real problem is that Cruz didn't go far enough.

The idea that judges should be above politics is a good one, especially when applied to trial judges who make lots of judgment calls about things like evidentiary points that can swing a case but aren't obvious to casual observers.

But the Supreme Court isn't above politics - as recent history has made more than clear, it's very much a part of politics. The extent of the importance attached to the Court in this election makes that plain and often, as in the Obamacare case, so does the behavior of the Court.

And to the extent that decisions are deeply influential on all sorts of aspects of Americans' lives, the Supremes are functioning more like a legislature than a court. No one would suggest that a legislature should be "above politics," and not accountable to the people.

An elected Supreme Court would probably also be more diverse: Right now the current Supreme Court is composed entirely of people who went to law school at Harvard or Yale. There's nothing wrong with those schools (I went to one of 'em myself) but at a time in American politics when many voters feel that elites don't have their welfare in mind, it represents a troubling lack of diversity. An elected Court could draw on a wider range of candidates than those who are tailor-made to impress the Senate Judiciary Committee.


And rather than lifetime appointments, perhaps members of the Court should be elected for a fixed term: say 10 years, so as not to match the incumbency of any single president. (We do something similar with the FBI director, who serves a 10-year appointment, for similar reasons.)

Many states have elected Supreme Courts, and they do fine --- and it's not as if hiding politics behind a smokescreen of appointment and confirmation makes the current selection process any less political. It just makes it less accountable.

We often hear that the Constitution needs to grow and change with the times. Perhaps we should have a national conversation on whether, in these times, the Supreme Court should be chosen by the voters rather than the elites.

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Glenn Harlan Reynolds, a University of Tennessee law professor, is the author of The New School: How the Information Age Will Save American Education from Itself and is a columnist at USA TODAY.

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