It has been nearly two centuries since the US Supreme Court went this long without a vacancy. The confirmation of John Roberts Jr. to replace the late William H. Rehnquist as Chief Justice was the first appointment since Stephen Breyer took Harry Blackmun’s seat in 1994. The end to this decade-long hiatus gives occasion to reflect on the process by which judges come to sit on America’s highest court. How do the 2005 proceedings square with the judicial appointment process the Founding Fathers had in mind?
In Electing Justice: Fixing the Supreme Court Nomination Process, Richard Davis, professor of political science at Brigham Young University, explains that the framers of the US constitution envisioned a process for selecting Supreme Court Justices governed exclusively by political elites. The Constitution provides that candidates for the nation’s highest court be nominated by the President and confirmed by the Senate, absent direct participation by the people. Yet the modern-day media circus that is the judicial appointment process hardly reflects this ideal of public insulation.
Marshalling case studies from the Supreme Court nominations of Ronald Reagan, George H. W. Bush and Bill Clinton from 1981 to 1994, Davis makes the compelling but unoriginal argument—echoing recent books by Lauren Bell, John Maltese, Mark Silverstein, David Yolaf, and others—that selection to the Supreme Court is high-stakes political business. In a chapter entitled ‘How the Process Broke,’ Davis deftly traces the transition from an ideal in which ‘the president chooses the most qualified individual and the Senate confirms such a person promptly’ to the reality in which appointments ‘have become public pitched battles,’ characterized by press releases, television coverage, grassroots lobbying, interest group advertisements, image-making campaigns, and public opinion surveys. Judicial appointments today, Davis argues, amount to an untenable ‘election without voters’: a disingenuous and undemocratic process of masked public involvement, which denies citizens any formal role in deciding who are the chief interpreters of the law.
In his introduction, Davis compares Supreme Court appointments to presidential campaigns. Much like a presidential candidate, ‘the [judicial] nominee’s background is open to public scrutiny, including every past public statement, action, and affiliation.’ Not only do campaigns for Supreme Court nominees ‘design elaborate image-making strategies for public consumption,’ but interest groups such as the Alliance for Justice and the National Abortion Rights Action League on the left and the Institute for Justice and the Family Research Council on the right ‘spend large sums of their money to shape public opinion and win the eventual votes of senators.’
Davis makes a case for statutory and constitutional changes to democratise the judicial selection process. If Americans select the President by popular election, Davis implies, why worry about similar direct public involvement in selecting Supreme Court Justices? Whether it is the executive or judicial branch, after all, should not federal officials in democratic government be chosen in a way that promotes accountability and reflects the will of the majority of those who live under their rule? Since citizens are trusted to select the chief executive of federal law, why not give the electorate a similar degree of influence over the chief interpreters of the law? Given that public involvement has already crept into the appointment process in a range of informal capacities, Davis argues policymakers should formally establish a system that ‘recognizes, legitimizes, and regulates the position of external players, particularly the electorate.’
In the final chapter, Davis finally gets down to specifics. Buried under a list of uninspired reforms—such as prohibiting presidential interviews of prospective nominees and restricting the duration and monotony of Senate confirmation hearings—is the proposal from which the book derives its title: popular election of federal judicial candidates by general ballot. Davis offers a number of ways in which the election of justices could work—whether voting is restricted to among a short-list of individuals nominated by the President or candidates researched and recommended to voters by the Senate—but the suggestion that justices be decided by general election is truly innovative, at least in contemporary literature on the selection process.
Davis is right to note similarities between the roles of the executive and judiciary branches at the federal level. Like presidential action, Supreme Court decision-making is inescapably political. While judicial verdicts are popularly conceived as objectively discoverable by inexorable deduction from the logic of the law, judges at the highest level cannot avoid making normative decisions among competing values. Cases that reach all the way to the top ordinarily involve the most contentious legal questions, for which precedent typically exists on both sides, the law is unclear even to legal experts, or no statute directly applies. Unspecified constitutional requirements that citizens be granted ‘due process’ and ‘equal protection’ under the laws, and be free from ‘unreasonable’ search and seizures or ‘cruel and unusual’ punishments removes any pretence that judges are confined to the ‘letter’ of the law. ‘[T]he American judge’, Tocqueville observed, ‘is dragged in spite of himself onto the political field.’
Moreover, the US Supreme Court, directly accountable to no electorate, has the power to strike down public acts, enacted by elected representatives, which stand at odds with the US Constitution, without regard for the preferences expressed by a majority of American citizens, whether those acts consist in federal laws approved by Congress and the President, state laws approved by a state legislature and governor, or municipal ordinances approved by a city council and mayor. A Supreme Court majority, five unelected justices serving for life, has the power to substitute its judgment for that of a majority of the people’s elected representatives. In Dred Scott v. Sanford (1957), the Supreme Court nullified Congress’s 1820 Missouri Compromise, conclusively restating the nation’s view on slavery and the political status of the black race, in the case of Brown v. Board of Education (1954), the Court overturned 75 years of constitutional precedent, state segregation laws, and the post-Civil War social structure of the South, and in the Roe v. Wade (1973) decision, the Court voided abortion statutes in over 40 states and upended a century of America’s moral fabric.
But Davis is wrong to think that denying the public a say in who sits on the Court would be contrary to democratic government. American democracy is a system not of unbounded majority-rule, but of shared powers constrained by institutional checks, constitutional endurance, and individual liberty. Unelected judges correct for the excesses of democracy. A majority of the electorate voting directly on candidates to the Supreme Court might act under transitory pressures of impulse, passion, hysteria, or crisis to select justices liable to deprive unpopular minority groups of their constitutional rights. While judges would remain alert to their non-reliance on the public’s post-election approval for continued judicial service, and so retain a good measure of independence, Davis fails to appreciate that Supreme Court justices are, like all public officials, in large part a product of the system that selects them. The protection of individual liberty requires insulation from the influence and expectations of partisan constituents.
Even in the era of Bush v. Gore, the Supreme Court does not act with the unbridled anti-democratic power Davis fears. Wielding influence over ‘neither purse nor sword,’ the judiciary must rely on the discretion of legislative and executive officers to implement its decisions. Legislatures can deny financial support and executives can withhold military enforcement. To have any effect, rulings must command acceptance from representatives and their constituencies as legitimate. So while justices have no choice but to decide on social policy questions ranging from abortion and euthanasia to affirmative action and flag burning, they cannot make those decisions in a way that bows to the pressures of narrow partisan interests or arbitrarily overrules the popular will.
There are moreover important reasons not to transfer responsibility for selection of federal judges from civic-minded professionals (e.g. Senators and the President) to the public and the press. If Davis is right to despair the ‘public pitched battle’ currently being waged over the nomination of federal judge Samuel Alito (replacing the failed bid of White House Counsel Harriet Miers to succeed swing Justice Sandra Day O’Connor), he is wrong to claim that judicial elections would be any better. Replacing the current nomination and confirmation processes with a popular vote would crowd out selection criteria of personal character, political conviction, and judicial philosophy in favor of the peripheral, the strategic, and the negative. Compare the probing, well-informed congressional deliberations on the Roberts confirmation with the ratings-driven media coverage of CNN, MSNBC, and Fox News on the Alito nomination. Judicial elections would bring with them lopsided media access, campaign finance loopholes, and undue influence of special interests that routinely plague presidential elections. The prospective burdens of campaigning before the public may well discourage some of most worthy Supreme Court candidates from accepting nominations they would otherwise accept.
In Electing Justice, Richard Davis presents an illuminating account of the contemporary Supreme Court selection process and develops a persuasive analogy between the political presidency and the political judiciary. But Davis draws the wrong conclusion from that analogy. Rather than giving reason to put selection for places on the high court direction to the people, the political resemblance between judicial appointments and presidential elections gives reason instead to appreciate the vital role an independent judiciary plays in the American system of democratic government. As the Roberts Court embarks on a new era in judicial history, Americans do well to embrace the special safeguard on majority tyranny that unelected justices afford.
Dov Fox is a DPhil student in Political Theory at St. John’s College.