In every country where elections are held, there are elections for the executive and legislative branches, but not for the judicial branch. Why is that? Wouldn't it be a good idea to have elections for that as well? It would have a truly independent judiciary. In Romania for example the judges&others are appointed by the elected President which obviously will always have the possibility to appoint somebody who will favour him or the pary for which he stands.
Some Us states have elections for judges. Harry Truman was an elected judge. If the Supreme Court were to be elected, how would you structure the elections? When would the votes be held? How often would they need to seek reelection? Would the whole country vote for all nine of them or nine separate regions? See how messy it gets?
The elections can be held at the same time as the executive and legislative elections. The people would vote for one let's say Main Judge who will appoint the others.
So in 2008 Obama would have been elected President, Mario Cuomo Chief Justice, and 8 cronies guaranteed to side with both for four years. You like dictatorships, I suppose.
I don't know who Mario Cuomo is but nevertheless, lets take the situation in which now the Chief Justice is appointed by the president and in my proposal the Chief Justice would me appointed by citizens. How is it my proposal more of a dictatoship than the current state of affairs?
We have nine justices with one vote each chosen by five different presidents of two different parties. From 1946-1953 we had nine justices appointed by two presidents of the same party. Study the important decisions made by those men up until the retirement of the last of them in 1975 and you'll understand. It is no coincidence that Democrats regained the Senate in 1986 and 2006. People were afraid of who the Republican presidents might appoint with the consent of a Republican Senate. I don't have time to explain it all now.
Now I have more time. Mario Cuomo was Democratic governor of New York in the 1980s. Many people expected him to run for president in 1992. He didn't so we got Bill Clinton. In 1993 there was a vacancy for associate justice. Clinton offered Cuomo the job. He declined, holding out for chief. Clinton chose Ruth Bader Ginzburg. In 1994 there was another vacancy. Clinton appointed Stephen Breyer, the runner-up from the year before. The chief justiceship finall became available in 2005, under Bush. Bush picked John Roberts, followed immediately by associate justice Samuel Alito. A Republican Senate confirmed both of them against vocal Democratic objections. In 2006 the public gave Democrats the Senate, guaranteeing that any additional Bush appointees would have serious problems getting confirmed. Hold that thought. Only two Democrats were elected president betweeen 1860 and 1928, so when Democrat Franklin Roosevelt became president in 1933 he faced a Supreme Court with 7 of 9 justices appointed by Republicans. Not only were they Republicans, they were old, with six of them 70 or older by 1937. They didn't consider that the economic realities of the 1930s were much different than in their youth, so they struck down several Roosevelt innovations, including the National Recovery Act. In 1937 Roosevelt asked congress to allow him to appoint another justice for each one over 70 who refused to retire or die. The court, terrified, decided a hard case Roosevelt's way. Congress wouldn't increase the court size, but they increased their pensions, so one of them retired immediately. Later that year one of the young ones died. By the end of 1939 Roosevelt had appointed 5 of 9. When he started his third term in 1941 two more retired including the chief. As a gesture, Roosevelt elevated one of the remaining Republicans to chief, but losing 7-2 all the time was no fun. As soon as Roosevelt died the other Republican retired. Truman replaced him with a Republican, but not an aggressive ideologue. The chief died a year later. Truman ended up appointing three Democrats, but they were practical men like himself, not hardline liberals like most of Roosevelt's men. In 1953 Dwight Eisenhower, a military man who ran as a Republican for convenience became president. The chief died that year. He replaced him with Earl Warren, former Republican governor of California and losing vice presidential candidate. Warren joined the liberals. Eisenhower later appointed another Democrat who tricked him into thinking he was conservative, two real Republicans and a very stupid man who went insane from the pressure. John Kennedy appointed one conservative and one liberal. Lyndon Johnson chose two hard liberals. Nixon got to replace Warren. He chose Warren Burger. Burger banged his head against the wall for a year, then decided to vote with the liberals to mitigate the impact of their decisions. Nixon chased out one of Johnson's appointees on an ethics charge, but the Democratic senate rejected his first two nominees to replace him. The man who got the job turned sharply liberal within a year. Nixon got two more appointees, a conservative William Rehnquist and a moderate who decided all the 5-4 cases the wrong way. Ford's lone appointment was the court's last true moderate. When he rose in seniority the liberal decisions became judicial rather than political. That bring us to Ronald Reagan. His first appointee was a woman, so everyone was happy. Republicsans controlled the senate for the first time in 26 years and in 1986 approved the elevation of Rehnquist to chief and Antonin Scalia to associate. The public was worried, so they elected a DEmocratic senate in 1986. The senate in 1987 rejected Reagan's conservative choice, so we ended up with Anthony Kennedy, the swing vote most of the time. When Bush Sr. got the conservative dunce Clarence Thomas through a Democratic senate the public decided only a Democratic president could keep the court balanced, so we got Clinton. His two appointees kept the court deadlocked, so it was safe to give Republicans the senate again until Bush got Roberts and Alito through, so in 2006 the public gave the senate back to Democrats. With that in mind, and the trend of the public to elect congressmen and presidents of the same party at the same time it follows that most judicial elections would also follow that pattern. That's dangerous. Try a different proposal.
So, the first interesting thing is that they are appointed for life. I guess this is to ensure less political responsibilities for the judges so they can get on with their job? But also, on the downside, as you mentioned, once they get old they loose touch with the current realities. Related to your conclusion, yes, it does seem to work like that, peope usually elect the executive and legislative from the same party. It works like that also in Romania. Although from your comments, you do seem to suggest that at various times the public elected the Senate so that it counter balances the appointed Judges. So, given these, we can have the citizens elect the judicial every 20 years or so and not at the same time as the exec + legislative elections. This ensures on one side the elimination of people voting for the same party man and also with the 20 years period we ensure that the judges don't have to worry too much with political reelection and campaigning and also they are not there for such a long time so that they do not get in touch with the current realities.
That's certainly a much better suggestion, but it brings a few things to mind. First, if the Chief Justice appoints all the other judges the court usually would function as a unit supporting everything proposed by one party or the other. When Obamacare passed, lawsuits followed immediately, with both sides hoping they would win, but most admitting the victory would be 5-4 or at best 6-3 because the court is divided. If Mario Cuomo were chief and had appointed the other eight there would be no doubt Obamacare would have been upheld 9-0. If Antonin Scalia were chief and had appointed the other eight it would be doomed. The abortion decisions of 1973 and the Dred Scott decision of 1857 divided the country. The next judicial election would have been a referendum on those cases. Can you imagine an election in say 1975 with abortion to be decided again soon after? What if that election was as close as the presidential election of 2000? Who would have decided the winner? As bad as 2000 was we knew that Bush would be cautious for the next four years with congress and the courts to check him. If each justice were elected separately two years apart for a single 18-year term the public could change the court's ideology slowly. People only interested in being chief might get two chances in their career. associate justices would only get a chance to move up if the chief died or resigned. The next question that comes to mind is what type of people would run for the supreme court. The most recent justice who spent any time in elected office was Sandra Day O'Connor (1981-2006) who had been a state legislator. Before her the last was Earl Warren mentioned above. Circuit judges would be hard-pressed to win an election against career politicians. Also chief justice would be a more important position than president because the term is five times as long. Some presidents, and that could have included FDR, would be stopped from pursuing much of their agenda by the chief. I think the public likes the court divided and the president and congress often controlled by opposing parties. They gave Reagan the Senate but not the House in 1980, took the Senate back in 1986, took both houses from Clinton when he got too powerful in 1994, kept the Senate (at one point exactly) 50-50 under Bush then gave it back to the Democrats in 2006, then took the House from Obama in 2010. The country really is split almost evenly on most major issues. Has Romania ever had that problem?
The Judiciary needs to stay as far away from politics as possible. I'll take what little bad comes with activist judges appointed by very partisan presidents as opposed to having Supreme Court Judges having to pander to the illiterate masses during an election campaign.
The average person is completely clueless about how the courts work or should work. Most Americans cannot name even one Supreme Court justice. The last thing we need is more morons deciding who sits there. Right now we get idealogues, sure, but at least they're usually qualified idealogues.
