The recent death of Justice Ginsburg has highlighted a serious weak point in American democracy. The current uproar about the likely appointment of a Trump nominee to fill Justice Ginsburg’s seat is the classic case.
The argument for political appointments is too shallow
This is no trivial matter. For whatever reason, credible or otherwise, the appointment of political appointees to the Supreme Court is just plain wrong. In theory and in fact, adding any personal bias to any court is wrong. To do so in the Supreme Court is worse than wrong. It’s a guarantee of biased verdicts based on political agendas. That’s not law. It’s judicial gerrymander.
It’s also not very credible in too many ways. Imagine a QAnon member appointed to the Supreme Court. Fun, eh?
The argument in favor of political appointments runs like this, and it doesn’t run far, or wide:
• An elected government has the mandate of the people: Only to govern. Not to intrude into legal rights.
• Why wouldn’t any government appoint people on its side? Short answer; the Constitution provides for a fair trial, not a politically-driven trial.
The problems with political bias in the Supreme Court
With a biased position on the part of Supreme Court appointees, the court basically becomes a party to cases it hears. The Constitutional and baseline legal rights of those whose cases are heard can be subverted on this basis alone.
For example:
An appointee with strong anti-abortion views will not take an objective view on any case involving abortion. Their personal views will color any decision.
(I have been saying for years/decades that no government on Earth has any right to even legislate on reproductive rights. There is nothing at all in the US Constitution empowering Federal or State governments to legislate anything at all regarding these matters. The First Amendment also holds that Congress cannot make laws related to freedom of belief, a major issue in abortion rights. These obvious facts haven’t stopped successive attacks on reproductive rights for decades. The Supreme Court has been the main battleground for these rights.)
Any kind of bias in a court to a pre-determined decision means that decision cannot possibly be fair and objective. In basic criminal law, evidence is heard, facts are delineated, and a clear decision is made on that basis.
…But that standard of decision-making can’t happen if the presiding judge(s) are working on the basis of political bias. Basic legal rights cannot be upheld if any aspect of decisions are predetermined by any form of personal or political bias.
It doesn’t matter what the case is about; if the Supreme Court is stacked against the defendant or the prosecution, it’s not a legal process. It’s a farce.
Undermining the rule of law
The theory of law as expressed in the US Constitution is based on the fundamental idea of a fair trial. Case law is a major component of the rule of law. A Supreme Court decision often directly or indirectly affects case law.
The rule of law principle is also based on the expectation of a fair trial and proper legal decisions. How can you possibly have either, if bias is involved? The rule of law simply cannot happen at all. A court decision becomes a mere personal opinion.
Life term appointees? Why?
Nor is there any rational or Constitutional basis for appointing Supreme Court Justices on a life-sentence basis. There are no qualifications for serving on the Supreme Court. Congress appoints members. Appointees must be under the age of 70, but at least one served on the bench into his 90s.
How appointments are made
There is no pre-set number of seats on the Supreme Court. Nominations are made by the President under the Constitution. (George Washington appointed 11 members.) The Senate approves Presidential nominees.
As you will have gathered, appointments are political by default, as well as in fact. It is therefore probable that appointees will act in accordance with political wishes in making decisions. This is the fleas wagging the dog. The Court can’t really be truly independent, do its job, and simply decide matters of law on this basis.
This is not to say that the Supreme Court hasn’t acted as an independent agent in many cases and simply made legal, not political decisions. I’m saying that the political appointment process is the built-in problem.
…So what’s the solution?
Centuries after it was written, the US Constitution continues to be one of the most advanced, and enlightened, constitutions in history. In fact, it’s one of the most enlightened humanitarian documents ever written.
Therefore – Please do not assume that these suggestions for a solution are in any way related to my own political or other biases. I have tried to find a solution that’s within the spirit of the Constitution and its inherent fairness. (One look at the Constitution and US history should tell anyone that going against core tenets of the Constitution can’t and doesn’t work, anyway.)
Suggestions:
1. Create a wider pool of judges to hear cases, preferably those with judicial experience, not the rather ambiguous “lawyers” of the past with any level or lack of level of competence.
2. The Supreme Court should not be an immovable object based entirely on those appointed Justices in tenure. (This could also eliminate bottlenecks in the Supreme Court process. At the moment, about 80 out of 10,000 cases are heard per year. That is obviously not an efficient process, and denies people the right to a speedy trial.)
3. Parties to cases should have the power to object to specific Justices, as they can object to jurors. (Justices are in fact called Jurors in some usages.)
4. Congressional oversight of appointments should match the actual process of passing and amending laws. A vote of both Houses should be mandatory.
In recent times, the Supreme Court was told in all seriousness that the disastrous sub-primes debacle was a matter of freedom of speech. Fraud is free speech? You couldn’t get away with even suggesting that in any lower court. If you’re thinking the Supreme Court is long overdue for maintenance, you’re quite right.
