In my recent post, Toward a Fair and Balanced Supreme Court, I suggested that perhaps we should stop trying to pretend that Supreme Court Justices were capable of avoiding bias and should instead openly embrace the observed biases by explicitly adjusting for them, ![[Picture of scales (of justice)]](files/pd-scales-of-justice-120x120-1233909450.gif)
seeking a well-advertised 3/3/3 mix on the Court—that is, 3 conservatives, 3 moderates, and 3 liberals. My idea was to get away with the secret stacking of the court to either the left or the right, and instead to promote decisions by the Court that were politically balanced, representing a better consensus of the population.
Comments on the post included, among others, these major points:
mishima666 succinctly summarizes my point by saying “we can't look at nominees to the Court in isolation from the existing justices. Instead each nominee has to be considered in the context of how he or she would affect the balance of the court.”
Saturn Smith notes, “Maybe there is some way to put in a fix that would take the power of selection away from the executive/majority or better define who has to be appointed/what balance must be struck, but... I think there is a system in place for this, called elections and voting, and it just needs to be better used.”
McGarrett50 raises the further question, “The premise that we should allow judges to behave as people with identifiable political views only highlights the fundamental criticism of the Supreme Court which is that it is no longer a court but is instead a super-legislature. The 3/3/3 option only makes this worse by implying that we are using purely political philosophy criteria to make choices. ... So, if the Supreme Court becomes purposely a political forum, then why not have judges elected?
Saturn's point about power is key in ways I didn't think about until I got deeper into this discussion. I, and I suspect many, often vote for President on the basis of who they will appoint as Supreme Court Justices. This often summed up as the “single issue voter,” and although I think that's a slight overstatement, there's a measure of truth in it.
It's common, for example, for a Democrat to recommend that one should vote for so-and-so for President because they will “protect a woman's right to choose.” And for Republicans it's the reverse, though it's usually framed as “protect the rights of the unborn” rather than “destroy a woman's right to choose.” But important as these issues are, they are also just details.
In both cases then, Democrat and Republican, the choice of who we want to lead the country is robbed from us because the overriding issue of importance to many voters is “who will the President appoint to support or override his own decisions.” And we're so focused on the support or override part that we don't get to focus on the leadership part.And so this comes to McGarrett's point because, in effect, it means many of us already vote for the Supreme Court, we just don't realize it. What we don't vote for is the President. When our vote is cast, in many cases, we're more trying to affect the Supreme Court than Executive direction.
It's common, too, for people to say that it has to be this way because the Supreme Court appointments generally survive the Presidency, so it's less important to worry about what the President will do today than what the Supreme Court will do tomorrow. In effect, the Supreme Court is the gift we give ourselves that keeps on giving.
It seems possible that a major contributing factor in the recent economic debacle, and the environmental problems to come, is long-running voter neglect that comes fairly directly from assuming that you can just focus on long-term issues (the Court) and not on short-term issues. The problem is that some of those short-term issues become long-term issues. So just as when Greenspan confessed he'd been assuming the market would protect itself, we may be in for a similar bit of shock when we find that the Courts can only protect us from certain things and that some issues really do require oversight from an executive who's competent in a way we have not been focused on because of the distraction of the Court.
So where I'm getting to is this: It seems to me at this point clearly right, as Saturn suggests, that the President should not have the power to appoint Supreme Court justices. It's not obvious to me why this power should be needed, frankly. In fact, on reflection, it seems to me to violate the notion of separation of powers for any President to be appointing anyone who might have an effect during his own administration. That gives too much power to the Executive.
Also, especially since Presidents have term limits, they are not life appointments. They come and go. If we have to pick them because of their opinion on a long-term matter, we're voting against the set of competencies for which we ought to be picking a President. Presidents should be about the leadership of the moment. We need to feel good electing a serious accounting nerd to get us out of a financial mess or a scientist or engineer to get us out of the climate crisis mess without worrying he's going to have bad sense about the Courts, which ought to be an irrelevancy.
It's not something I've personally paid a lot of attention to, but apparently the President appoints all life-tenured federal justices, too, which is I guess the same problem replicated in smaller arenas. That is probably also something that should be fixed at the same time, since I otherwise would have said that these people should vote on who should sit on the Supreme Court.
I think what I'd like would be for the Congressional representatives in affected districts to pick the federal judges for their district. And then the district judges could pick Supreme Court Justices by a vote within them. I think that would preserve an independence of the Court that does not seem to exist now. The specific mechanism is not something I'm fixed on. What I am presently fixed on is that the President should not have this power. I think it's hurting our entire system.
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Comments
And as for the deregulation that has led to this current economic crisis, the USSC had no part in that. Removal of laws like Glass Steagall were accomplished in Congress and signed by President Clinton. The court had no roll in that or things like that.
The remark about the separation of powers is minor and goes mostly to the question of how to fix things. I didn't suggest (in the article anyway) that the Supreme Court took specific action affecting the economy—I made some observations about the bind voters are placed in by having them have to elect a president both on the basis of who they want on the Court and who they want for President. By having one vote cover both of these areas, I don't think we get good Presidents.
Ok, but if I can "interpret" again what Kent is saying -- I think he's saying that for many people the presidential power to select justices for the Supreme Court is so important, that many people vote for president on that basis alone, and not on the basis of other presidential functions and qualities of leadership.
Thus, to some extent the economic crisis may be due to having had a poor-quality president the last eight years who was elected largely because many of his supporters believed he would appoint justices who would eventually overturn Roe V. Wade.
I mean, let's be blunt about it. For many people, especially for those in the religious right, abortion is THE issue, and literally nothing else matters as much as abortion. If Sarah Palin had been pro-choice the Republican party wouldn't have given her the time of day, and all moose hunts and tax cuts and down-home folksy claptrap in the world wouldn't have gotten her a spot on the Republican ticket.
In effect abortion becomes the tail that wags the dog. Candidates are selected on that basis. People vote on that basis. Political parties are divided on that line.
In effect, I think Kent is saying, let's find a way to take an issue such as abortion off the table as far as who we select for president. Once we do that we can then focus on selecting a president on the basis of all these other qualities and issues that really are more important to the survival and future of the country.
And things like laws regulating commerce always rest more heavily with Congress than with the President. So this does fall back on the voter, and the legislature anyway.
There will always be people who vote on the single issue that they feel most passionate about, in the past that may have been slavery, the gold standard, an unpopular war, as well as abortion. I don't see how that compromises our selection of representatives, including the President
I think the problem is that the Senate has abdicated its responsibility to act as a check on the President's selection of judges and justices, and ultimately we the people have allowed, even encouraged, our representatives to cede to the President unchecked powers never envisioned by our founders. Restoring the balance between the three branches won't be fixed by setting up a new set of rules for naming judges.
Also, as to the issue of who would then appoint judges, I said I'm not wedded to the particulars. Ithink it would be fine for Congress to just appoint the judges. It doesn't require a check on the power then because it already gets checked by a vote of many people. (In the specific case you cite the Supreme court would still be elected by the whole nation, so even a regional bias could be overcome by the whole nation. In general, there's no solution if the entire country is against a particular idea.)
1) short answer - yes. (not the point of your post, but the answer to your title question is YES - the Supreme Court appointed W and W's economic leadership led to the current tsunami)
2) I've been thinking about a premise over the last few days -- that a lot of our current governing and economic structures are based on an assumption of TRUST. That people will do the right thing and are basically competent in their given roles (from driving a car to managing a bank to being Chief Executive of the US)...
we aren't quite sure what to do when the opposite may be true...
anyway, I will ponder your post more and come back when I've had more sleep and more caffeine (I took a 6:20 flight home this morning)
lps
I may not be helping this conversation along but here goes. I think you are looking at this problem backwards. This issue is not that people are wrong to vote for the President to influence the court. The issue is that they should have to do this at all since the Court has so exceeded its powers that our elected officials have no power on some issues at all.
Example: On the issue of resolving differences over abortion policy, wouldn't it be more efficient to elect legislatures and governors to do this rather than elect Presidents and Senators to then put people on the Supreme Court super-legislature?
I know that there were issues in this country like right to vote for minorities and the like. The Court helped here but in the end the Voting Rights Act was an action of elected officials. I think we have a reached a level of maturity in our democracy that the ability of the public to know the actions of government and vote/petition for change is broad and deep. So, preserving the power of the Supreme Court is fighting the last war.
After all, back in 2000, they put Bush in the White House. His decisions while in office have a lot to do with the problems we're facing.
Roy, I don't see this as a partisan issue in the sense that each party has had the same issue—a perception that the other is abusing placements on the Court. The idea that conservatism has failed is a dubious claim, but even if I give you that for debate's sake, that's a partisan victory and it's hard for me to see that doing so disposes of the issue. So I can't quite make sense of where you're going with that (although perhaps you're saying the same of me—heh). My overall sense is that some of these issues are more like “innocence lost” and that it cannot be reclaimed. Once people discover a political tool, the option to simply not use it goes away. By contrast, the abstract notion of “checks and balances” begins with the presumption that people will try to be human about things and even to abuse power, so it puts in place counterbalancing power. I don't see how dismissing something as a done issue will cause there to never have been power and so will cause there to be no need for counterbalancing power.
McGarrett, hi, thanks for opining. I happen not to believe that it's good to break abortion up by state, so I don't see that as a solution. And while I understand the general concept of fighting the last war, etc., that's not an exact science and I don't think I'd say that we can therefore not expect to see further matters where right/left conservative/liberal etc. matter.
Tony, yeah, lpsrocks made that same observation a bit earlier. I guess that's so, and kind of sad. I was really getting at something slightly different here, though, so maybe I picked a distracting title.
The idea of electing a single- short-term-issue president is more alarming to me. The president should be someone with a vision -- and with judgment -- that the country wants to see exercised over a variety of issues. If we're electing a guy just because he's great at accounting, why even have a Department of the Treasury? And does that mean that the Secretary of Defense is in charge of any wars that come up, because President Numbers wasn't elected to deal with that kind of thing? The President should be a generalist -- someone whose short-term and long-term views neatly dovetail, who can deal with the here-and-now of a financial crisis while also looking forward to how the next one might be prevented. Likewise, he should be able to enforce current law while also appointing those who will interpret it down the road.
I was also International Representative for the US on the area of the Lisp programming language. Yes, unbeknownst to you, I was your representative on this incredibly obscure matter. Little did you know. And again I was forbidden from suggesting that my preference was yours. Anything said in the name of the US had to come through process. People would often hear me opine and then later say “The US said...” and I would dutifully correct them and say “No, only I said that. I'll tell you explicitly when the US says something.”
But all of this experience taught me one thing: The people who vote through process (just as when you vote in an election) do so for personal reasons. They are not obliged to agree on those reasons. And so one can speculate about the why and attempt to infer a gestalt that explains the aggregate behavior, but really the behavior of each individual is their own personal priority, differing one to another. And the group as a whole does not, therefore, make its decision for any reason of principle, but merely because “the vote came out that way.”
I say all this because you said “The idea of electing a single- short-term-issue president is more alarming to me.” It may be. It alarms me, too, in some circumstances and not in others. A President to handle only Climate Change may well be necessary at some point; certainly many have argued that if our current President could only solve the economic problems, that would make his overall presidency a success. You might say this was thinking of the long term, but in the long term many more issues are needed. The short term priority is this, now, only.
But regardless of whether I agree with you or disagree, the point is that these are our private opinions. The public is not obliged to agree. And the possibility, even the likelihood, and almost surely the history, is that people will vote and have voted their short term needs. So this should indeed scare you because it's the way things are done. And that's why I don't want the power with the President.
Is direct election the only route that would work? I'm still against that, for all the ugly and typical elitist reasons.