Sunday, June 12, 2011


In 1983, the New York Times editorial page carried a reference to the “nine men” on the United States Supreme Court.

It earned them a feisty letter to the editor from Sandra Day O’Connor, who at the time had been a Justice for two years. She said that if the President is called POTUS and the Supreme Court given the acronym SCOTUS, she should be known as FWOTSC. Meaning, of course, First Woman On The Supreme Court.

And, to be sure, she was.

On July 1, 2005, after nearly 25 years on the high court, Justice O’Connor announced her intention to retire, effective when her successor would be confirmed. She was succeeded by Samuel Alito on January 31, 2006.

Since then, she has been remarkably busy, teaching, speaking, writing, and occasionally sitting as a lower court federal judge.

One of Justice O’Connor’s pet projects is to promote the improvement of the judiciary, specifically by advocating what is commonly known as ‘merit selection’ of judges.

Typically, merit selection plans are patterned on a law adopted some years ago in Missouri. In fact, the ‘Missouri Plan’ has become short hand for a system in which the Governor appoints judges from a list of candidates nominated by a blue ribbon panel of citizens.

Supposedly, these blue ribbon nominated judges are a cut above the usual elected judges. The Missouri Plan gives the public a chance to oust unpopular judges in a so called ‘retention election.’ The ballot says, Should Judge X be retained? YES or NO.

Justice O’Connor is coming to Michigan next week to lend her support to the efforts of a local Task Force, which is trying to revive the oft defeated efforts to install merit selection in the state.

The people of Michigan have repeatedly expressed their preference for electing judges. Whether Justice O’Connor can light an opposing fire remains to be seen.

Frankly, I would be more interested to know what Justice O’Connor thinks about ‘merit selection’ for the United States Supreme Court.

She has had some things to say which suggest that she is not a fan of the present system.

On July 21, Justice O'Connor spoke to a 9th U.S. Circuit conference and blamed the televising of Senate Judiciary Committee hearings for escalated conflicts over judges. She expressed sadness over attacks on the independent judiciary.

In May 2010, she warned female Supreme Court nominee Elena Kagan about the "unpleasant" process of confirmation hearings.

Certainly the selection of United States Supreme Court Justices can hardly be called non-partisan.

Superannuated jurists hang onto their seats waiting for a President of their party to be elected before retiring. Candidates for the Presidency run for office campaigning on promises to appoint this or that kind of judges. The United States Senate convenes a circus of committee hearings to probe, question, expose and often discredit Supreme Court nominees.

If a select committee of citizens is needed to nominate state court judges, why is it not desirable at the highest level? Who vets the people being considered for appointment?

Recently a group of law school professors and deans put together a proposal for reforming the United States Supreme Court. Got me to thinking. Isn’t it time for us to have a non-partisan Supreme Court in America?

Isn’t it time to stop naming Justices because of their party affiliations, partisan connections and political preferences?

The job of the courts is to interpret the constitution and laws so as to give effect to the intention of the people who adopted them. Courts aren’t supposed to make new laws, declare new rights, and ‘modernize’ the constitution.

Judicial service is a high and noble calling. The process of selecting judges should be professional, solemn and free from partisanship.

Here’s what I propose:

The Supreme Court shall consist of the nine present members and their successors, who shall be appointed by the President without confirmation by the Senate, for eighteen year terms, from among a list of five persons nominated by a majority of the Chief Justices of the highest appellate courts of the several states.

This non-partisan amendment would insulate the court from a Rooseveltian court packing. It would provide a truly ‘blue ribbon’ committee of state chief justices who know the law and the constitution, and who are familiar with the leading members of the bar.

It would moderate the present incestuous tendency to appoint law clerks and judges from a select few law schools which are not representative of the people of America or the legal profession in our country.

Sandra Day O’Connor was born in Texas, educated in California and served as a legislator and as an appellate judge in Arizona. While her alma mater, Stanford University is a prestigious institution, it’s a long way from the Atlantic seaboard.

She would be a powerful spokesperson for an effort to reinvigorate the principle of federalism in the selection of Supreme Court Justices.

What say you, Madam Justice?

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