Has there been a movement to make US judicial appointments apolitical?

Politics Asked on December 23, 2020

The judicial system in India and some other countries is independent of politics in the sense that it is not the party in power that influences who will be a Supreme Court judge, but judges among themselves decide it, through a collegium system.

While it can have it’s shortcomings to be guarded against, of internal politics and susceptibility to vested interests, the system imo protects the judiciary from becoming another political battleground, and protects the people’s faith(of being non-partisan) in the judicial system.

In the UK, the Judicial Appointments Commission (JAC) an Independent Commission looks after the process of selection of candidates for judicial office in courts and Tribunals. The JAC consists total 15 members; out of those 3 members will be from Judges Community, and remaining 12 members (including Chairmen) are appointed through open competition. Besides JAC there is another authority known as “Judicial Appointments Conduct and ombudsman” to look into the Complaints regarding appointments by JAC and Judicial discipline or Conduct.

While in the US the Supreme Court seems to be a lynchpin in considerations about electing a President(threat of him appointing more conservative or more liberal judges to SC)

Has there been any movement or ongoing movement to make the US Supreme Court more independent of politics of the day?

2 Answers

If so, it didn't get anywhere near success. In order to change so fundamentally the way US Supreme Court justices are appointed would require a constitutional amendment. An amendment is politically very difficult because it must not only pass through the federal legislature, but 3/4 of the individual states' legislatures as well.

There is a reasonably short list of failed amendments which made it through Congress but were not ratified by the states. None deal with judicial appointments. Of course many more proposals have been considered in Congress without passing, but I'm not finding any references to one quite along the lines asked about here. Here is a list of many such proposed amendments from recent decades and the closest it mentions is a proposal from the 103rd Congress (1993-1994) to "allow Congress to pass legislation to allow the Supreme Court to remove federal judges from office." This might be worth looking into further, but isn't about appointments directly. There have also been several contrary proposals, to require periodic re-confirmation of federal judges after various periods in office

Correct answer by Brian Z on December 23, 2020

Yes. It seems reasonable to say that that in the early part of US history, Thomas Jefferson, and the Democratic-Republic party represented a movement that intended (among other things) to prevent the politicization of the US judiciary. If the courts were limited to the authorities explicitly enumerated in the constitution, the role of Justice could be substantially less political, perhaps even apolitical.

In the US today, it is generally accepted that the US Supreme Court has the authority to declare portions of statutes passed into law as unconstitutional and void. This authority, called judicial review, has become a key factor that makes Supreme Court appointments so political. Consider for example the issue of abortion: without judicial review it would be a non-issue in confirming Supreme Court Justices.

The Federalist founding fathers explicitly supported judicial review, e.g. Alexander Hamilton's Federalist Paper No. 78. Thomas Jefferson on the other hand opposed giving the court the authority to override the Legislative and Executive Branches, and wrote extensively stating his opposition both before and after his being elected president. For example:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. --Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

The US Constitution was left vague about the matter. In effect, the Supreme Court gave itself the power of judicial review through a very politically savvy ruling in Marbury v. Madison, during Jefferson's presidency. The Chief Justice, John Marshall, crafted an opinion that asserted the power of judicial review to invalidate a portion passed legislation, while simultaneously giving Jefferson a political victory that would have made it difficult for Jefferson to oppose or ignore the opinion.

Answered by Burt_Harris on December 23, 2020

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