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July 19, 2005
Tampering Would Court Disaster
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Erwin Chemerinsky is Alston & Bird professor of law and political science professor at Duke University. |
I very much disagree with those such as Richard Davis and Edward Lazarus who propose major changes in the selection process, such as having a national election for a Supreme Court Justice or limiting a Justice to an 18-year term. I think the adage, "if it isn't broke, don't fix it," applies well here. The system for choosing Supreme Court Justices has worked remarkably well for over 200 years.
Of course, as Davis argues, Supreme Court justices make value choices in interpreting the Constitution. That always has been true and always will be true. Interpreting broad phrases like "due process of law" or "equal protection of the laws" or "cruel and unusual punishment," or determining what is a "compelling government interest" inevitably will turn on the values of the justice. For that matter, even Marbury v. Madison involved a value choice since judicial review is nowhere mentioned in the Constitution. Many states have elected judges and an examination of these systems shows that election is an inferior way for choosing judges compared to the process created in the Constitution. Election puts a premium on popularity and electability, not the values that should be most important for an institution that is supposed to be non-majoritarian.
Likewise, the Lazarus proposal, based on one developed by law professors Roger Cramton and Paul Carrington, is aimed at solving a non-existent problem. It is unclear what would be gained by limiting justices to 18-year terms. Throughout American history, countless justices have served longer than this. The loss of the wisdom and experience of these justices, ranging ideologically from William Brennan to William Rehnquist, would have been substantial.
No system for selecting judges is perfect, but those who would change a system that overall has worked for over 200 years have a very heavy burden to meet. I don't believe they have done so.
Posted at July 19, 2005 09:49 AM
Comments
Irwin: I'd like to know what's your take on the history of Supreme Court nominees as far as the use of the filibuster goes to stop an up and down vote? I do agree that the system isn't broken, so don't fix it. But as far as I can tell, the Senate Democrates have taken filibustering out of historical and constitutional context. That is, the consent part of "Advise and consent" doesn't contain "stop," but appears to lead to the commonsense conclusion that a vote determines whether there is "consent or not." Am I wrong?
Posted by: Richard M. Holbrook at July 21, 2005 09:47 PM