Why Not End the Charade And Just Elect Judges?

I have a question for all those who support — either reluctantly or enthusiastically — taking “ideology” into account in nominating federal judges: Why not just elect them?

The federal courts have inevitably become much more politicized as they have become much more important players in disputes over policy, and it is obvious to all that the nomination process has been reduced to little more than politics. So, why not make it openly, and hence honestly, political?

Recall that, somewhat like judges, U.S. senators were originally thought to stand above politics, and they were appointed by state legislatures. Once it was recognized that their purpose and effect was in fact political, the 17th Amendment was adopted, in 1913, to provide for their direct election.

Directly electing judges would not seem to make the process much more political than it is now. And I’m not even referring to the transparent interest-group pandering, such as Sen. John Edwards justifying his opposition to the nomination of Dennis Shedd to the 4th Circuit on the grounds, as reported by Bryron York, that Shedd has “a record of not ruling in favor of victims of discrimination.” Sen. Edwards, trial lawyer par excellence, is no doubt confident that Shedd ruled against “victims” because he heard all the testimony, read the trial records, and applied the law to the facts thus revealed.

But leave the pandering aside and look at what purport to be reasoned arguments, such as the one from Sen. Dianne Feinstein. Feinstein, York reports, said the 4th Circuit is “a special court” because a third of the people living in its area of coverage are black. (Her constituents may be surprised to hear that their court, the 9th Circuit, is thus presumably not so “special.”) “It’s very hard for me to understand,” she continued, “how we should move ahead with an individual who represents a red flag to a substantial part of the constituency he would be serving.”

Never mind that Feinstein knows Shedd raises a red flag to a “substantial part” of his future “constituency” — note well the political term here — because liberal interest groups told her so. Assume that it is true. If we are to take Feinstein seriously and apply that standard (hold your laughter, please), it is impossible to see how any judge would ever be approved. Abortion? Racial Preferences? Guns? A “substantial part” of every judge’s “constituency” is sure to be red flag-offended by any judge who must confront these hot-button issues.

Sen. Feinstein would probably be surprised to learn that, in giving a veto power over the nomination of all federal judges to a “substantial part” (how substantial?) of their “constituencies” who are likely to be seriously offended, she has just signed on as an acolyte of John C. Calhoun and his theory of the concurrent majority.

It’s clear why some would oppose the election of federal judges — for example, people who think law and politics are not the same thing and thus who do not think the function of judges should be to decide policy; people who think that the distinction between interpreting law and making law is both real and important; people who believe that impartiality is possible; people who believe in “rights” that majorities may not infringe.

It’s not clear, at least to me, why people who do not believe these things would not favor the direct election of judges. Perhaps it is because they are afraid they really are a minority, which could have the beneficial effect of making them more sympathetic to some of the above-listed values that support a truly independent judiciary.