Friday, November 23, 2007

"We are all [Supreme Court Justices] Now".

"In fact, motivated interest groups are pouring money into judicial elections in record amounts. ... The first step that a state like Pennsylvania can take to reverse this trend is to replace the partisan selection of its judges with a merit-selection system, or at least a nonpartisan system in which the candidates do not affiliate with political parties. In a typical merit-based system, an independent, commission of knowledgeable citizens recommends several qualified candidates suitable for appointment by the governor of the state. ... The second step a state can take is to set up campaign-conduct committees to educate voters and the media about the criteria people should use to select judges. ... One of the dangers of low media coverage and high-interest group spending is that voters hear only from activists who have targeted a particular judicial race. The Pennsylvania retention races show how easily the issues in judicial elections can be controlled by special interests. Special interest appeals to emotion and policy preferences tempt voters to join efforts to control the decisions of judges. Voters are less likely to devote themselves to the core value of judicial independence, because when judges apply the law fairly and impartially they cannot guarantee the outcome any particular voter might want. But fair and impartial judging is an essential part of our government. If we lose appreciation for our government structure and the role of the judiciary within it, it is only a matter of time before the judicial branch becomes just another political arm of government", WSJ, 15 November.

What does "merit selection" mean? Does a judge who shares the author's policy preferences have "merit"? Should law professors make judicial selections? Aren't governors who appoint judges partisan? What criteria does this piece's author think POTUS uses to select federal judicial nominees? Why do thousands of lobbyists try to influence POTUS's judicial selections? The author prefers lobbyists to elections. Does the author think Bill Clinton and George Bush had no political considerations in selecting judges? Who will select the independent commission of knowledgeable citizens? Could I serve on it even though I lack a law degreee? What makes a candidate qualified or suitable? Could I serve on the bench? If not, why not? Where is it written that a judge must be an attorney? Does having a Harvard JD qualify you? Educate voters and the media? Who selects the criteria? I don't want to be propagandized under the rubric of "education". Mao Ze Tong had "reeducation camps" in China. Would I be sent to one to learn which criteria to use to nominate judges? What's wrong with voters trying to control judicial decisions? Are judges beyond criticism? Are judges petty dictators? What do most judges know anyway? Why assume a judge is fair and impartial? What does "judicial independence" mean? Why should popular disappointment in judicial decisions be a surprise? Don't disputes give rise to legal cases?

Which contemptuous would be petty dictator wrote the piece? Sandra Day O'Connor (SDO), formerly Associate Supreme Court Justice. Despite SDO's Stanford BA and JD, I have long seen her as one of our two most "intellectually challenged" post-1945 Supremes. Two examples of SDO's judicial "thinking" are: Gratz v. Bollinger, 539 US 244 (2003) and Grutter v. Bollinger, 538 US 306 (2003). What a nitiwt! Does SDO ever read ? The Supreme Court has been another political branch of government since Brown v. Board of Education, 347 US 483 1954.

I borrowed this piece's title from Richard Nixon's 1971 comment, "We are all Keynesians now". SDO was an "affirmative action" Supreme. We can all be Supremes now.

No comments: