People sometimes complain that I and other conservative constitutionalists treat the Constitution as inspired. Now, I do think following the Constitution provides a relatively neutral way to resolve disputes: looking at what we agreed to in the Constitution is a way to impose a check on our personal views. It is also true that I do think the founders were wiser than our current elected leadership, and am thus leery of modifying the Constitution, even via the amendment process. However, the Constitution isn’t beyond improvement. So, here’s one flaw: Presidents pick Supreme Court justices.
Can you imagine someone who would have a tolerably good foreign policy but not make wise decisions regarding judicial appointments? Having to select one person to deal with executive issues and who also will fill judicial vacancies makes for worse elections and less-logical decisions on the part of the electorate. Some voters don’t care about judges and do care a lot about foreign policy, some care about domestic policy almost to the exclusion of foreign policy. Executive policy and judicial policy are not the same thing. By having us select one person who will help to direct one and control much of the selection of the other, the Constitution makes it more difficult for us to carefully deliberate together on either.
I do not agree with the Democrats who complain about poor conservatives voting against their economic interests because of social issues. But, if we can separate these social and economic issues somewhat, we might be able to compromise, and each get a bit more of what we want. At least, by removing fears of judicial activism as a factor in selecting Senators and the President, you can focus better on your economic pitch—and can defend your social and economic views in legislative races with less of a fear that a “progressive” Senate will be able to use judicial appointments as a backdoor way to impose its views without a direct vote.
There is a fundamental incentive problem with letting the President pick judges, even with the requirement of Senate confirmation. The President has an incentive to pick judges who will support his or her agenda. Would it not be better if the judges who were going to review the executive’s decisions on, say, the treatment of prisoners, were not themselves selected by the executive? Further, many social and economic decisions are in our constitutional structure intended to be made at the state level—letting the rest of the national government pick judges creates a structure which will tend to select judges that favor the interest of the federal government over those of the states. Letting citizens pick the judges through a separate process could help to make the selection process less biased towards judges who favor the Senate and Presidency over the state governments.
Further, separating the selection process of judges from that of the Senate and Presidency helps to allow for more rational deliberation on the part of the electorate. Wouldn’t it be good if voters who don’t care about judges didn’t have to pick the person who selects the judges? That is, a voter who cares about what the executive or Senate does but who doesn’t care much about the judiciary doesn’t have a way to leave that choice to more concerned citizens—so such a voter, even if not particularly supportive of judicial activism, might be more likely to pick someone with their desired executive or senatorial characteristics even if that candidate is likely to pick judges who pursue the senate or executive’s policies via judicial means. I think a greater separation between judicial selection and the selection of the legislative and executive branches would help to take away some of the structural spurs to judicial activism.
I suggest that during non-presidential election years, a set of judicial electors be selected, with each state getting the same number as they get for the electoral college during presidential years. These electors would be charged with filling Supreme Court and other judicial vacancies during a four-year term. Now, there are additional details which would need to be ironed out—such as whether to have all the electors vote on district and circuit judges, or just the states (or regions) concerned—but I think that regardless of whether there was such a split in how electors chose judges, an electoral college system would lead to better judges than we currently have.
Further, it would allow presidential elections to focus on executive issues—wouldn’t fewer people be stressed out this election if we didn’t have to worry about Donald Trump or Hillary Clinton selecting the next Supreme Court Justice? This would also avoid judicial confirmation fights in the Senate and leave such conflicts to people selected to focus on them—and, as noted above, we might get to focus on the remaining duties of Senators better as we select them. Wouldn’t both the upper house of our legislature and our executive be improved if people didn’t have to worry about the Supreme Court (and couldn’t use it as an excuse) when confronted with an otherwise undesirable candidate?