Gavel Gamut
By Jim Redwine
(Week of 21 March 2016)
WHO GETS TO CHOOSE AND FROM WHOM?
America’s two greatest strengths are its diversity and its democratic form of government. Our diversity provides input from the talents of many. Our three separate but theoretically equal branches of government keep power from consolidating in one group by dispersing it among the populace. The public maintains the right to hold power by having the right to vote for the Executive and Legislative Branches, both state and federal.
As for the Judicial Branch, not one federal judge is chosen by election and in many states judges are selected by a small number of people. The trend in America is that more and more judges at all levels are chosen by fewer and fewer people. The public usually has no input in such selections. These unelected judges may ostensibly stand for review every six or ten years or so, but in reality, they serve as long as they wish.
In each of these articles on America’s judiciary I have unequivocably stated I do not believe elected judges are any better or any worse than appointed ones. It is not the product that is the issue. The issues are: (1) who gets to select the judges; (2) from what pool of candidates can judges be taken; and, (3) how do we get rid of judges we do not want? In other words, does our current system by which we select some of our judges place the diversity of the Judicial Branch and our democracy at risk?
Because the country is presently concerned with the replacement of Justice Scalia, I will concentrate on the United States Supreme Court (SCOTUS). But the growing trend to eliminate the general public from control over those who judge them is an issue at all levels.
As for SCOTUS, the following facts may help illustrate my concerns. Starting with the President having the constitutional duty to nominate justices and the Senate having the constitutional duty to “advise and consentâ€, the general public is excluded from direct input on those whose decisions affect their lives.
The President must choose the nominees from somewhere, yet neither the Constitution nor any federal legislation gives any guidance as to what qualifications, if any, the President is to consider.
While the Constitution does not require it, all justices have been lawyers. America has over two hundred law schools. Harvard and Yale are only two of these two hundred yet all eight of the sitting justices come from either Harvard or Yale.
President Ronald Reagan attended Eureka College in Illinois. Reagan nominated Anthony Kennedy, a Catholic, white, male who graduated from Harvard.
President George Herbert Walker Bush, a Yale graduate, nominated Clarence Thomas, a Catholic, African American male who also went to Yale.
President William Clinton, a Yale graduate, nominated Ruth Bader Ginsburg, a Jewish female and a Harvard graduate. Clinton also nominated Stephen Breyer, a Jewish male who graduated from Harvard.
President George W. Bush who went to Yale, nominated John Roberts, a Catholic, white male, and a Harvard alumnus. “W†also nominated white, male, Catholic Samuel Alito who went to Yale.
President Barack Obama, a Harvard graduate, nominated one female Catholic Yale graduate, Sonia Sotomayor, and one Jewish female Harvard graduate, Elena Kagan. Obama has also nominated a replacement for Scalia. That nominee, Merrick Garland, is a Jewish male, graduate of Harvard.
It is neither nefarious nor surprising that presidents would nominate candidates from the two law schools with which they are most familiar. It is also no sin that only Jewish and Catholic judges are represented on the Court. It is probably simply the natural consequence of drawing all of the Supreme Court judges from an extremely small pool. That the culture, ethnicity, religion and numerous other sociological factors might be similar is to be expected when dealing with a small sample of Americans.
The problems that need to be addressed are the unintended weakening of diversity in the pool and a lack of democracy in the selection process. In a country of 330 million people containing 50 states, hundreds of law schools, numerous religions and ethnic backgrounds, an entire branch of government should not be populated by only two religions and two law schools, regardless of which religions and which law schools they may be. This is especially true where one person nominates the judges and the terms of those judges may extend far beyond the term of the president who nominated them.
