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Should Supreme Court Justices Be Elected?

To the Editor:

The Supreme Court is the only branch of government that is not an elected body. Should it be? Should justice be political – ideological? Are court appointments disenfranchising voters? Would elections affect the quality of the court and the decisions rendered?  Does political posturing of the Court affect decisions made? Should the Court have an odd or even number of members? 

These legitimate questions need answers. The simple term “justice” implies impartiality and should be above partisan politics. Then there is the issue of the number of members on the court. Perhaps a ten-member court, with a 6-4 vote of approval, instead of a 5-4 vote would serve us better. Ties would negate approval and the court should not hear cases that only have a quorum of their members present. If the issue is significant enough to be heard by the Supreme Court, all members should hear the case.

Electing judges has been political since the Dred Scott case in 1858, which may have contributed to the Civil War. The Roe v. Wade decision caused a similar sort of civil conflict by lifting abortion out of the province of state law. The Brennan Center for Justice, named for a Supreme Court member, finds that the entry of political campaigning into judicial elections threatens "fairness.” I have difficulty reconciling elections with threatening “fairness.” State judges, including state Supreme Court justices, are elected in many states. Seven states have partisan elections for justices, and electing lower court judges is common. Thirty-nine states have judicial elections at some level. Does this mean that the majority of states are already participating in unfair practices? 

There are those who say that the congressional vetting process is a sufficient check and balance against bias, however, we cannot ignore that the selection process is based primarily upon which party controls the White House and Senate. While most all of those put forward carry with them significant credentials, the party in control will dictate whether the presidential recommendation is approved. Keep in mind that only a simple majority vote is required for confirmation.

Rasmussen recently provided statistical information regarding who favors elections and who opposes them: 65 percent of ordinary Americans support electing judges, while only 22 percent feel that judges should be appointed and 69 percent feel judges should adhere to term limits. Among the political class, however, a plurality of 49 percent believes that judges should remain appointed. The partisan and ideological responses show that conservatives feel much more strongly about judges being elected, and interestingly, 78 percent of Republicans, 63 percent of Independents and 55 percent of Democrats agree with conservatives.

 Would America be better served if Supreme Court judges were elected instead of appointed? Do We The People have the capability to determine whose qualified for the Supreme Court. Should we consider increasing the Court’s membership to ten? Finally, in support of a balanced, non-partisan court, should membership on the Court, of any single party be limited to five members? 

A.P. Roznicki

169 Hanover Road, Newtown                      August 26, 2013

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