We must acknowledge from the outset there is likely no foolproof method to eliminate politics or favoritism from the selection of judges at any level in our government. But we have had abundant evidence in recent years that our processes for selecting judges – at every level, really, but particularly for state and federal supreme courts – are deeply flawed.
For the U.S. Supreme Court, we have seen political maneuvering to delay the nomination of a candidate for the nation’s highest court in hopes – justified as it turned out – that a president more favorable to one political party could be elected to fill a vacancy, and in complete contrast, we have seen the process rushed to prevent a president less favorable to that same party from having the chance to fill a vacancy.
Both were shameful perversions of a process that is supposed to identify justices who, to the extent humanly possible, will evaluate cases without prejudice or political bias. And they’ve led to calls for an equally shameful perversion – the expansion of the court to give a president the chance to tilt the political balance of the court.
Then, on the Illinois Supreme Court, we’ve just concluded two election campaigns that focused almost entirely on the political party affiliation of the candidates with virtual disregard for their experience, temperament or intellectual fitness for the job.
Identifying a perfect solution for such systemic weakness requires more debate and detail than we can provide here, but we can state unequivocally that important revisions are needed.
At the state level, elections are a poor means of selecting judges at any level. For supreme court, a system surely could be devised to enable identification of a pool of qualified jurists from which the governor could nominate candidates who would have to be confirmed by an overwhelming majority of elected senators and representatives.
Our current system of electing state supreme court justices has understandable roots in 19th century political chicanery involving non-elected appointments, but experience and simple reason have shown that the electorate on its own is not the place to identify and ensure the most competent individuals to preside over a complicated legal system. Nor should party affiliation have any relevance to the selection of these judges.
For that matter, popular elections are the wrong means of selecting judges at any level. Voters should have a say and some oversight in the process, of course. But the complexities and detail of interpreting and adjudicating our laws require candidates who meet rigid requirements of experience and training. The most responsible Illinois voters today often feel frustrated and unqualified to effectively rule on which judges to elect or retain.
The federal courts, especially the Supreme Court, need at least (three) modifications:
• A system should be devised to better identify jurists who would preside without political bias, rather than simply basing the decisions on executive office nominations whose fates are determined by nothing more than political confirmation.
• Lifetime appointments should be abolished in favor of terms of office long enough to permit judges to operate without fear of political reprisal but limited enough to prevent any justice from serving indefinitely without oversight from either electors or elected officials.
• A fixed number of U.S. Supreme Court justices should be enshrined in the Constitution, and a specific timeline should be established for filling vacancies.
Any changes to the makeup or operation of our courts ought never be undertaken lightly, of course. They require long, careful examination and scrutiny and the demanding process of revising state and federal constitutions.
But weaknesses in the structure and management of the court system undermine citizens’ faith in both the judiciary that interprets laws and the very institutions that form the foundation and strength of government.
The stress fractures forming in the makeup of our courts and the reactions of our people to them are a clear warning that the time has come for identifying and implementing substantial repairs.
The Daily Herald