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Should Supreme Court Justices be elected or appointed?
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Judicial appointment helps produce a higher caliber of independent judges

Judicial appointments ensure that only independent justices with necessary qualifications can serve in the Supreme Court. Elected justices can be extremely unsuited to the job.

The Argument

Judicial appointment of Supreme Court justices is the most effective system for judicial selection because it helps produce a Supreme Court with a highly qualified, independent justice profile. It avoids the risk of unsuited people serving as justices from judicial elections. Under the appointment model, a nominating commission is responsible for selecting candidates for judgeships. The commission investigates and interviews potential nominees to determine the candidates’ eligibility. It submits names to the appointive body (usually the governor or the president) to make the final decision. Nominating commissions operate according to specific guidelines. These guidelines establish the necessary qualifications for potential candidates. Members of the commission include lawyers in private and government practice, prominent members of bar associations, current judges, and academics. Therefore, the appointment model minimizes the role of politics and maximizes justice quality.[1] Citizens may not have enough information about which judge has a better profile. Therefore, justices who spend more money on a campaign can get elected even though their qualifications are insufficient for the justice position. Justices with distinct political views can also be elected if they pursue a successful campaign. Such a situation would threaten the independence of the judiciary.[2] For example, Roy Moore was twice elected to the Alabama Supreme Court and twice removed from the office because of his politically and religiously motivated rulings. Moore refused to recognize federal court orders regarding marriage equality because he believed that religious laws superseded the Constitution.[3] Overall, citizens cannot always elect the best quality judges since colorful advertisements, and campaign finance may influence their decisions. Judicial appointment avoids such situation.

Counter arguments

Appointment systems are not immune to politics or external pressures from special interest groups. Most nominating commissions include elected officials and members of the plaintiffs or defense bar. These members are inclined to nominate individuals who are supportive of their interests.[1] Justices may also become the agents of those who appointed them. For example, the current U.S. Supreme Court, appointed by President Trump, has granted 17 emergency stays (out of 29 applications) to the Trump administration even though the lower courts have held most of them invalid. During the 16 years of the Bush and Obama administrations, the government asked the justices for such emergency relief only eight times while the justices granted half of the applications. A stay from the Supreme Court allowed President Trump to divert military construction funds to build his border wall. Similarly, stays from the Court have allowed the Trump administration to enforce a variety of asylum policies, including the "Remain in Mexico" program and the public-charge rule. As we see from this example, it is possible for a Supreme Court to become politicized under certain leaders.[4] Therefore, the appointment is not always made based on the qualifications of the candidates. It can still produce a Supreme Court with unsuited and politicized justices.



Rejecting the premises


This page was last edited on Sunday, 8 Nov 2020 at 19:50 UTC

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