Saturday, May 29, 2010


The confirmation hearings for Solicitor General Elena Kagan’s appointment to the United States Supreme Court will begin in June.

No one seriously expects them to be very news worthy. After all, the President’s party has a majority in the Senate. They will be swift to approve his choice.

President Obama is a liberal. He governs from the left. He has his political agenda. Abortion. Gay rights. Union power. Green power.

People expect the President to use his authority to appoint Supreme Court Justices who will advance his political agenda.

Liberal Presidents appoint liberal Justices. Conservative Presidents appoint conservative Justices. That’s the way the world works.

And the winners expect the Court to bend the law in their direction.

In this pragmatic world, very few people believe that there is such a thing as a non partisan judge. And very few people expect judges to do anything but vote their political preferences.

Of course there have been some very noteworthy exceptions, at least on the surface. Republican John Paul Stevens, appointed by President Gerald R. Ford, has hardly carried the mantle of a conservative. Neither did Earl Warren, a former Republican Governor of California. Dwight Eisenhower thought the Warren appointment was the worst mistake of his presidency.

The Constitution of the United States says very little about the Supreme Court. Just this:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office."

Nowhere does it say there shall be nine Justices. The number of members of the Supreme Court is left to the Congress. Back in the 19th century, the Congress enlarged the court as a way to overrule its decision outlawing paper money.

In the 1930’s Franklin Roosevelt tried to pack the court with supporters of his progressive social agenda. He failed, but nobody questioned the power of Congress to pack the court, if they had the votes.

During my years on the bench in Michigan, all of our judges were elected on non partisan ballots. I always liked the system, and believed that it produced courts which were less beholden to political power brokers.

Recently, a group of law professors from around the country has been promoting an agenda of judicial reform. They have some valid points. Supreme Court Justices usually stay too long. They wait for a President of their own political persuasion to be elected before they step down.

Or maybe they just like to be part of the power structure themselves.

Being a proponent of an Article V amendatory convention, I have given some thought to judicial reform myself. My contribution would look something like this:

“The Supreme Court shall consist of the nine present justices and their successors, each of whom shall be appointed by the President from a list of three candidates nominated unanimously by the Supreme Court and shall serve a term of eighteen years. Former justices may be called for temporary judicial service by the Chief Justice.”

One benefit of this system would be that the political agenda of a President, whoever he or she may be, becomes secondary to the common purpose of the members of court to select persons with whom they can all work comfortably.

While the system would not completely eliminate partisanship on the court, it certainly would tend to put party affiliation on the back burner.

At least it's worth talking about.



  1. Having Supreme Court Judges
    recommend and appoint colleagues
    to the Court would appear to just exacerbate the current problems with the US Supreme Court.

    The Court is tilting dangerously in the direction of elitism and cronyism.

    Although collegialism is important to any work environment, there is something to be said for the advantages of divergent viewpoints, backgrounds,and experience and regional diversity on the Court.

    President Eisenhower, in his fairwell address, warned about the dangers of the "military industrial complex" and too much
    power concentrated in corporations
    that would erode our freedoms.

    The Roberts Court decision allowing unlimited corporate money in our elections appears to be very dangerous to individual free speech, voting rights(one person one vote rule) and our democracy.

    A Court that votes continually to support large corporations' rights
    and against the rights of small
    business and individuals is a Court
    that is not representative of America or the Founding Fathers viewpoints.

  2. How about, the Supreme Court shall consist of one justice from each region, a Chief Justice and one justice appointed at-large. Each Justice shall be appointed by the President with the advice and consent of the National Caucus of the Senate.

  3. Judge Brennan:

    What are your thoughts on this:

    "Souter's Challenge to Scalia"?

  4. I consider myself a disciple of Thomas M. Cooley who wrote:
    "A court or legislature which would allow a change in public sentiment to influence it to give a construction to a constitution not warranted by the intention of its founders would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, then these instruments would be of little avail."

    Even more egregious than justices holding a wet finger to the wind is the tendency of the court to get ahead of public opinion, and mandate values that have not yet been widely enough espoused by the people to be reflected in the decisions of the legislative branch of government.