US Supreme Court

GogLais

Ad Honorem
Sep 2013
4,815
Wirral
#1
I thought one of the driving features of the Constitution was the separation of powers but Supreme Court judges are effectively political appointments, which seems odd to an outsider. Any commments from our American friends? Logically, shouldn’t the SC judges be elected? I believe that people like district attorneys are elected, how far up the legal tree does that apply?
 

Bart Dale

Ad Honorem
Dec 2009
6,866
#2
I thought one of the driving features of the Constitution was the separation of powers but Supreme Court judges are effectively political appointments, which seems odd to an outsider. Any commments from our American friends? Logically, shouldn’t the SC judges be elected? I believe that people like district attorneys are elected, how far up the legal tree does that apply?
They are appointed for life. and require the approval of the Senate.

If judges were elected, their rulings could be effected by considerations of getting re-elected or elected in the first place. The whole idea of the Supreme Court is to make them independent of political pressure, and that wouldn't happen if they were elected officials. Because the judges are not elected, they can act as a check on elected officials. A populist mood could sweep tne country, and a majority could run over the rights of minorities, the judges being appointed for life can prevent that, it gives judges the power to make unpopular rulings they wouldn't othwerwise have.

The framers of the US Constitution were very worried about some popular movement sweeping and siezing power, much like the Nazis did in Germany, and designed the US government from making that happen. In any given election, only 1/3 of the Senators are being elected, Senators having 6 year terms, so no movement, no matter how popular, could completely gain control of both US houses of government in a single election. And even a minority of Senators have powerful tools at their disposal, such as fillabusters, that can delay legislation. While it can't stop a populist movement from gaining control, it can delay things to give the public time to reflect and perhaps change their minds.

Federal district attorneys are not elected, but state DA are elected, as are most State Supreme Court judges. It is only Federal judges and District Attorneys who are not elected.
 
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RoryOMore

Ad Honorem
Mar 2012
3,391
USA
#3
State and local judges are usually elected, federal judges are appointed from the district court level on up to the Supreme Court. It would be hard to elect Supreme Court justices, because there's only four elected federal officials for each citizen. If a justice died, the election for a new one would have to correspond with a congressional election, so you might have to wait two years to replace a dead justice.

The appointments of federal judges are a political process, but the need for Senate approval tends to move picks away from the eccentric. The independence of justices is derived from their lifetime appointments. This independence is not just from the other two branches, but from popular opinion, sometimes called the mob. The behavior of elected district attorneys, to me, argues strongly that officials in the justice system shouldn't be elected.
 

Bart Dale

Ad Honorem
Dec 2009
6,866
#4
State and local judges are usually elected, federal judges are appointed from the district court level on up to the Supreme Court. It would be hard to elect Supreme Court justices, because there's only four elected federal officials for each citizen. If a justice died, the election for a new one would have to correspond with a congressional election, so you might have to wait two years to replace a dead justice. 
Actually, you could just appoint a judge to fill in the unexpired term until the next election, that is what is done sometimes when a Senator or Congressnman dies or leaves office during their term. While sometimes special elections are called, sometime not, and in any case the appointee fills the office until the next election, special or regular.



The appointments of federal judges are a political process, but the need for Senate approval tends to move picks away from the eccentric. The independence of justices is derived from their lifetime appointments. This independence is not just from the other two branches, but from popular opinion, sometimes called the mob. The behavior of elected district attorneys, to me, argues strongly that officials in the justice system shouldn't be elected.
I agree, and the writers of the US Constitution shared a similar view.

Which is why the writers of the Constitution made judges appointed for life. Even if the process to appoint judges is somewhat political, once appointed, the judges are independent, and don't have to answer to the politician who appointed them.
 
Jun 2017
2,513
Connecticut
#5
They essentially are indirectly elected, the President who you vote for or against appoints the Justices. This allows an electorate's voice to be heard for decades and is a unique check on the other two branches who are all representing recent electorates. So I think this isn't a terrible concept especially seeing the power the court has to revolutionary change society but now that this wasn't respected with Obama it shouldn't be for Trump either in terms of retaliation and we've got ourselves a huge mess. Court was always political and I think pretending that it wasn't was largely a charade. Prior to Garrland, while choices could be rejected, no one was really questioning the President's right to make those appointments they were just forcing him at most extreme to get his second choice because there were issues with the choice him or herself(like that time in the 80's when Kennedy was appointed, the original choice, Bork, was rejected). With Garland, many Republicans liked him and had said great things about him in the past but they were rejecting a previously respected consensus for political gain, one that I think was harmful so why should anyone allow any justice to be appointed if they have the votes to prevent this?

Fortas the closest peer was rejected because of issues with him not because they rejected LBJ's right to make the appointment. Fortas was also already on the court.

So I think this issue has just ballooned now, was always political, heck the Marbury case which gave SCOTUS judicial review was a case about a lower level judge being appointed in the lame duck period by the previous President and the current administration refusing to give him his commission.
 
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Bart Dale

Ad Honorem
Dec 2009
6,866
#6
They essentially are indirectly elected, the President who you vote for or against appoints the Justices. This allows an electorate's voice to be heard for decades and is a unique check on the other two branches who are all representing recent electorates. So I think this isn't a terrible concept especially seeing the power the court has to revolutionary change society but now that this wasn't respected with Obama it shouldn't be for Trump either in terms of retaliation and we've got ourselves a huge mess. Court was always political and I think pretending that it wasn't was largely a charade. Prior to Garrland, while choices could be rejected, no one was really questioning the President's right to make those appointments they were just forcing him at most extreme to get his second choice because there were issues with the choice him or herself(like that time in the 80's when Kennedy was appointed, the original choice, Bork, was rejected). With Garland, many Republicans liked him and had said great things about him in the past but they were rejecting a previously respected consensus for political gain, one that I think was harmful so why should anyone allow any justice to be appointed if they have the votes to prevent this?

Fortas the closest peer was rejected because of issues with him not because they rejected LBJ's right to make the appointment. Fortas was also already on the court.

So I think this issue has just ballooned now, was always political, heck the Marbury case which gave SCOTUS judicial review was a case about a lower level judge being appointed in the lame duck period by the previous President and the current administration refusing to give him his commission.
Bork was a rejected as part of a political campaign, including TV ads, and the Democrats controlled the Senate at that time. It used to be the Senate honored the President choice, it was not so politicized. The Denocrats tried another sleeze campaign against Clarence Thomas' nomination with nameless accusations, but when they were forced to put up, it was seen their accusations were groundless. The process has been so politicized because the Left has continually used the Supreme Court to achieve what they could not achieve in an actual election.
 
Jul 2007
9,098
Canada
#7
The process has been so politicized because the Left has continually used the Supreme Court to achieve what they could not achieve in an actual election.
To be fair - this isn't restricted to the States or to one side of the aisle, it's part of a general degeneration of civility. Which might be the left's fault.
 

Rodger

Ad Honorem
Jun 2014
5,251
US
#8
In theory, once nominated and confirmed, the SCOTUS is free to rule without interference. Almost all have outlasted the POTUS who nominated the person.
 

kandal

Ad Honorem
Aug 2015
2,333
USA
#9
Bork was a rejected as part of a political campaign, including TV ads, and the Democrats controlled the Senate at that time. It used to be the Senate honored the President choice, it was not so politicized. The Denocrats tried another sleeze campaign against Clarence Thomas' nomination with nameless accusations, but when they were forced to put up, it was seen their accusations were groundless. The process has been so politicized because the Left has continually used the Supreme Court to achieve what they could not achieve in an actual election.
No point in blaming the Left. The Right also carries the same blame. Supreme court appointees should be based upon complete neutrality, and not to be based on party politics.

Bork was a complete nutcase, since he thought he was better than the constitution. Clarence Thomas seems to be the stupidest judge. Republicans appointed this black judge for the sole purpose insulting the Blacks, as he has consistently ruled against everything they stand for.
 
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Jun 2017
2,513
Connecticut
#10
Bork was a rejected as part of a political campaign, including TV ads, and the Democrats controlled the Senate at that time. It used to be the Senate honored the President choice, it was not so politicized. The Denocrats tried another sleeze campaign against Clarence Thomas' nomination with nameless accusations, but when they were forced to put up, it was seen their accusations were groundless. The process has been so politicized because the Left has continually used the Supreme Court to achieve what they could not achieve in an actual election.
I don't care about politicization when it benefits what I consider to be right, I'm a proud hypocrite generally who values substance over institutions(and most everyone is IMO but reluctant to acknowledge this) but consistency is needed to keep the peace and at the end of the day in neither situation you cited did anyone threaten the President's choice to get A nominee all these stories are about specific people being attacked for political reasons. If Obama had gotten the Garland/Gorsuch seat they'd be no movement to deny President Trump this appointment, at most you'd get an equal to the situation you've described where boo hoo you get your second or third choice, and the opposition leverages their power to get the least objectionable nominee possible, Trump has a list of 25 people or something he wants, so what? Reagan was getting someone on the Court no matter what in both instances the debate was who. As long as the President gets a nominee through nothing wrong with this. The expectation for Supreme Court justices has always been that the sitting President makes that appointment and we've maintained that ever since and that's dead now.

Garland was not rejected because of his flaws/perceived flaws as a nominee though and his seat was flipped entirely through political intrigue. Bork being replaced by Kennedy or Thomas by someone else is not a comparable situation.
 
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