Democracy may occasionally resemble a food fight but it is more palatable than rule by oligarchy. Or, as John Milton (1608-1674) put it in Paradise Lost, “It is better to reign in Hell than serve in heaven”.
America’s system of selecting all federal and many state judges resembles a game of inside baseball in which public money greases a machine which has little public input. The currently pending replacement of Justice Scalia is a salient example of politics in need of air and light, in other words, democracy.
My suggestion is to start by incrementally modifying our federal judicial selection process, which would most likely lead to modification of our states’ systems. I would begin by developing a pool of potential judicial candidates. This would require the United States Senate to rely on its Constitutional duty to advise and consent to the President’s nominations.
The Senate would be within its authority to formulate regulations setting forth certain criteria judicial candidates must meet before the Senate would consider them. A corollary would be if the President did nominate a qualified candidate from this pool, the Senate would have to fairly and expeditiously consider such candidate. These criteria would have to be non-discriminatory in the protected categories of gender, race, ethnicity, religion, sexual orientation, etc. However, they would be universal in requiring qualifications such as character and fitness, education, training and experience. America’s law schools and state Bar associations would surely conform their standards to the Senate’s criteria, if they were reasonable and non-discriminatory since they would want their students and members to have the opportunity to compete for federal judgeships. Thus, the federal system would, per force, lead to modification of our country’s entire manner of determining who would fill the Judicial Branch. This would help ensure independence and fairness while helping to lessen outside influences, such as from political parties or special interest groups.
While my preference would be for non-partisan elections of all judges for a term of years, if inclusion in the pool of potential judges was available to anyone who met proper requirements, other, perhaps better systems, could also be considered as long as the public maintained control.
The ultimate goal is an independent Judicial Branch made up of qualified individuals who have been selected by a democratic process. These judges should serve for set terms subject to non-partisan but democratic review. Most importantly, we should select our judges by a system that encourages them to decide cases only on the law and the facts.
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