Inner Resources: Time to Elect the Justices.

Yes, the United States Constitution can be amended and we have done throughout our history. Sometimes to undo mistakes that became political and social crises or sores on the body politick; most notably, to heal the division of the Civil War. and to enunciate a new birth of freedom in the 13th, 14th and 15th Amendments. We undid prohibition and established women’s suffrage. In some cases we tweaked the political structure by making it more representative and responsive, such as by shortening the lame duck period for federal office holders. We can now address the most recent breakdown in our constitutional polity: the charade of Supreme Court appointment.

It would be easy to blame Mitch McConnell for breaking the senatorial toy of high court appointment, but perhaps what McConnell did is show us that there was a flaw in the machinery — a flaw he greedily exploited to rob President Obama of his most important function after national security — the nomination and appointment of a Supreme Court Justice for life. Plainly, McConnell had no plausible or legitimate constitutional basis for stopping the highly qualified Circuit Judge Merrick Garland except raw partisan politics.

If you pressed McConnell beyond his talking points, he would tell you that. he didn’t start it: Go back to the Republicans who blocked Justice Fortas from being Chief Justice; or the late Senator Kennedy’s successful effort to stop the alumnus of the Saturday Night Massacre, Robert Bork; and the fights that Nixon faced and George H. W. Bush faced over their respective mediocrities. Don’t forget Harriet Miers from George W. Bush.

The point is that despite the framers genius in making Article III judges lifetime appointees, purportedly insulated from politics and free to opine on our liberty without fear of repercussions, that in fact they go to the Court front-loaded with political ideologies on jurisprudence and the largest issues of our day.

On a rarer occasion, some Justices grow and surprise — David Souter is the obvious example — another is Byron White. Both likely ruled differently than their “president “ would have wished. But, in the main, they are highly predictable and highly partisan. Moreover, now that the appointment and confirmation process is broken seemingly beyond repair, it is time to revert to the Framers default position and that is majoritarianism.

We can maintain the independence of the remaining Article III judges — but provide by Amendment for election of the Supreme Court. I propose we elect the Justices in National Elections for 12 year terms on a nonpartisan basis. Each Justice serves but one 12-year term which cannot be repeated. Each Justice must meet certain constitutional qualifications, including be at least age 40 years and have a legal education. They serve for good behavior during that term and their compensation cannot be reduced. After 12 years they are gone.

I think it is a more sound approach than FDR’s attempt to pack the Court in the thirties; I also think it takes away a function that the Senate has constitutionally abdicated. I think we have reached this point in American constitutional history. Thanks, Senator McConnell — you just made it plain for us.

-Albert Turner Goins



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