I believe the judiciary became politicized because it became the most expedient way to make certain policy choices semipermanent. That is, only amending federal or state constitutions could get around courts ruling some policies unconstitutional, so mere statutes passed by new legislatures with different parties in majorities were insufficient to affect court decisions.
In a way this began post-Roe with the Pro Choice side deciding not to spend political capital on statutes supporting access to abortion. That way Democrats could appeal to appeal to remaining Pro Life Democratic voters (safe, legal, and difficult as Hell to get), and Republicans could appeal to remaining Pro Choice Republican voters by saying their votes in favor of restrictions were just messaging with no impact. The courts had done the dirty work, and politicians could equivocate in response.
As for removing partisanship from selection of judges, I believe it may be necessary to remove politics entirely from those selections. Maybe something like a judicial selection board, with, say, 6 sitting judges, 3 non-judge members of the bar with at least n decades of legal practice experience, and 3 non-lawyer members with extensive interaction with the courts and legal process (make take considerable work deciding qualifications\*), and require appointed judges receive at least 8 votes from such boards of which 2 of those votes must come from non-judge lawyers and 2 from non-lawyers. These wouldn't be full-time commitments, but would meet a few times a month, or maybe twice a week for a few weeks for each position. Larger boards for appeals and supreme courts. I figure such randomly selected boards would be the only way to eliminate as much partisanship as possible.
\* Maybe non-lawyers could apply for consideration, take a test on various points of law, legal procedure and jurisprudence, and those who pass with, say, 85% become part of the pool.
DeWine’s son (a judge on the Ohio Supreme Court) refused to recuse himself from a case on the re-districting challenge his own father participated in. The Ohio Chief of the Supreme Court (an R) voted in agreement along with the Dem judges calling out the gerry-meandering done. But as I stated earlier, the Rs got a federal judge to overrule. Unfortunately, that Chief was not allowed to run again in 2022 due to term limits and she was replaced by a MAGA judge.
I've always thought that electing judges was a really bad idea. Given what's happened to our confirmation process at the federal level over the past 40-odd years, I'm not so crazy about doing it that way, either. What to do?
Here in Brazil where I live now, becoming a judge is a career choice that law graduates make as soon as they pass the bar, different from being a litigator, going into private practice, or working in the legal department of a corporation or governmental entity. Judges are promoted, or not, by their peers as they become more experienced, so all judges except those at the very top are chosen by other judges. And they all have to retire at 75, including the few, like Supreme Court Ministers (i.e., Justices) who are appointed.
Maybe we should give it a try. And if that doesn't work, I suppose we could try a lottery.
Wisconsin's judicial election, and what's going on at the state level in Florida, is the consequence of politics as war, especially a culture war. There can be no victory in such a war because one side is never going to get the other to surrender and repudiate their deeply held world views. So what you get is ever intensifying division, conflict, mutual disrespect and erosion of the principles of compromise and civil discourse that make liberal democracy and respect for the rule of law possible. No wonder our adversaries see us as a nation in decline.
It’s impossible to tell whether a judge is “partisan,” until one reads their rulings. If a decision is well-reasoned and thoughtful, the fact that it aligns with a political position is irrelevant. Hagedorn’s vote was in keeping with the law. If Judge Janet’s abortion vote is thoughtful and reasoned her personal feelings don’t matter. All judges have personal feelings. The problem with SCOTUS is that the conservative justices make the law of the land based upon their personal proclivities, not respect for precedent, for example.
I certainly hope she wins. Kelly is a nut and a “lady of the evening.”
All Americans need to realize that the Federalist society are nothing but cheerleaders for unrestrained capitalism & plutocratic power masquerading as originalist jurisprudence. To me, if you wanted to create a modern day "Star chamber", the pool of judges would come exclusively from the Federalist Society.
One of the most important things contributing to good government and stable government is the belief/perception that there is justice and that it is reasonably equitable.
This alone can make or break a government and a society.
For a long time in this country many--a majority--successfully pretended/believed that our system was just/equitable. Well, at least a majority of people that had money and votes and a voice.
Changing mores/norms and the growth in the power and voice of minorities has been slowly killing that belief/perception as we have become more aware of things that we previously did not consider or ignored.
The increasingly visible (and partisan) struggle to control the law and its application/interpretation in an attempt to hold the old status quo or return to it where it has been lost is another nail in the lid of that coffin.
The increasingly visible immunity of the rich and power and corporations to the law is yet another nail.
So the lid is largely nailed down at this point... to the point that powerful individuals will openly ignore law because they can play games with the system (through power, wealth, and influence) to avoid consequences. You can seemingly incite an insurrection and face no consequences. You can flat out lie (painting it as "opinion") and face no consequences--at least no criminal consequences.
This has largely destroyed faith in the justice system--which was not high (at this point) to begin with.
It is going to be VERY hard to restore that faith... and if you CAN do it, it is going to take decades to do.
Decades where the selection processes are less partisan.
Decades where interpretations and decisions are less openly decisions made by ideologues for clear ideological reasons.
Decades where the powerful, rich, and influential actually face something that looks like justice and that has real consequences for them.
Re: The UN. There was a time when a situation like that in Ukraine would engender news about the UN every day. We have heard almost nothing from the UN. Last week, Timothy Snyder tore the Russian Ambassador to the UN a new one at a meeting of the UN Security Council, called by the Russians on the subject of "Russophobia"--ya think?--and I had to learn of it directly from Snyder's Substack.
There are no simplistic answers to the dilemma of the composition of the courts. Personal integrity and faithful adherence to stare decisis is imperative. Justices who adhere to these attributes are those who are historically proven to merit their position of trust. Unfortunately, many who fail these tests are thrust into their seats by those pursuing pre-ordained agendas.
Disturbing. Alarming. I've run out of adjectives. Wisconsin set up this cluster by using elections instead of appointments. And obviously neither side cares about the actual law. But when the Republican candidate attacks a Republican justice for voting for the rule of law, he outs himself as unworthy of the position.
I am continuing to shape and reshape what I believe about any and all Supreme Courts.
Articles like this helps a great deal.
Mr Sykes, I've been observing American politics from a very young age from Australia.
I see lots to admire about the American system, but there are, in my view, three glaring flaws:
1st: no term limits for US Supreme Court Judges (something Australia eliminated in 1977).
2nd: the ELECTION of State judges - how does that make for an impartial, independent judiciary?
3rd, your HoR having to face re-election every 2 years? It's bad enough in Australia, with a 3-year cycle!
That said, I do appreciate your inciteful and sometimes wry commentary ...
I believe the judiciary became politicized because it became the most expedient way to make certain policy choices semipermanent. That is, only amending federal or state constitutions could get around courts ruling some policies unconstitutional, so mere statutes passed by new legislatures with different parties in majorities were insufficient to affect court decisions.
In a way this began post-Roe with the Pro Choice side deciding not to spend political capital on statutes supporting access to abortion. That way Democrats could appeal to appeal to remaining Pro Life Democratic voters (safe, legal, and difficult as Hell to get), and Republicans could appeal to remaining Pro Choice Republican voters by saying their votes in favor of restrictions were just messaging with no impact. The courts had done the dirty work, and politicians could equivocate in response.
As for removing partisanship from selection of judges, I believe it may be necessary to remove politics entirely from those selections. Maybe something like a judicial selection board, with, say, 6 sitting judges, 3 non-judge members of the bar with at least n decades of legal practice experience, and 3 non-lawyer members with extensive interaction with the courts and legal process (make take considerable work deciding qualifications\*), and require appointed judges receive at least 8 votes from such boards of which 2 of those votes must come from non-judge lawyers and 2 from non-lawyers. These wouldn't be full-time commitments, but would meet a few times a month, or maybe twice a week for a few weeks for each position. Larger boards for appeals and supreme courts. I figure such randomly selected boards would be the only way to eliminate as much partisanship as possible.
\* Maybe non-lawyers could apply for consideration, take a test on various points of law, legal procedure and jurisprudence, and those who pass with, say, 85% become part of the pool.
Independent judiciary - looks what's happening in Israel and be very afraid! It can happen here.
That Tucker quote tweeted by Acyn is a gargantuan self own.
DeWine’s son (a judge on the Ohio Supreme Court) refused to recuse himself from a case on the re-districting challenge his own father participated in. The Ohio Chief of the Supreme Court (an R) voted in agreement along with the Dem judges calling out the gerry-meandering done. But as I stated earlier, the Rs got a federal judge to overrule. Unfortunately, that Chief was not allowed to run again in 2022 due to term limits and she was replaced by a MAGA judge.
I've always thought that electing judges was a really bad idea. Given what's happened to our confirmation process at the federal level over the past 40-odd years, I'm not so crazy about doing it that way, either. What to do?
Here in Brazil where I live now, becoming a judge is a career choice that law graduates make as soon as they pass the bar, different from being a litigator, going into private practice, or working in the legal department of a corporation or governmental entity. Judges are promoted, or not, by their peers as they become more experienced, so all judges except those at the very top are chosen by other judges. And they all have to retire at 75, including the few, like Supreme Court Ministers (i.e., Justices) who are appointed.
Maybe we should give it a try. And if that doesn't work, I suppose we could try a lottery.
"Jim Jordan" and "Bogus". They just go together like "Grease" and "Grime", don't they?
As JVL has mentioned: we need to win almost every single time. All they have to do is win once.
Wisconsin's judicial election, and what's going on at the state level in Florida, is the consequence of politics as war, especially a culture war. There can be no victory in such a war because one side is never going to get the other to surrender and repudiate their deeply held world views. So what you get is ever intensifying division, conflict, mutual disrespect and erosion of the principles of compromise and civil discourse that make liberal democracy and respect for the rule of law possible. No wonder our adversaries see us as a nation in decline.
It’s impossible to tell whether a judge is “partisan,” until one reads their rulings. If a decision is well-reasoned and thoughtful, the fact that it aligns with a political position is irrelevant. Hagedorn’s vote was in keeping with the law. If Judge Janet’s abortion vote is thoughtful and reasoned her personal feelings don’t matter. All judges have personal feelings. The problem with SCOTUS is that the conservative justices make the law of the land based upon their personal proclivities, not respect for precedent, for example.
I certainly hope she wins. Kelly is a nut and a “lady of the evening.”
All Americans need to realize that the Federalist society are nothing but cheerleaders for unrestrained capitalism & plutocratic power masquerading as originalist jurisprudence. To me, if you wanted to create a modern day "Star chamber", the pool of judges would come exclusively from the Federalist Society.
One of the most important things contributing to good government and stable government is the belief/perception that there is justice and that it is reasonably equitable.
This alone can make or break a government and a society.
For a long time in this country many--a majority--successfully pretended/believed that our system was just/equitable. Well, at least a majority of people that had money and votes and a voice.
Changing mores/norms and the growth in the power and voice of minorities has been slowly killing that belief/perception as we have become more aware of things that we previously did not consider or ignored.
The increasingly visible (and partisan) struggle to control the law and its application/interpretation in an attempt to hold the old status quo or return to it where it has been lost is another nail in the lid of that coffin.
The increasingly visible immunity of the rich and power and corporations to the law is yet another nail.
So the lid is largely nailed down at this point... to the point that powerful individuals will openly ignore law because they can play games with the system (through power, wealth, and influence) to avoid consequences. You can seemingly incite an insurrection and face no consequences. You can flat out lie (painting it as "opinion") and face no consequences--at least no criminal consequences.
This has largely destroyed faith in the justice system--which was not high (at this point) to begin with.
It is going to be VERY hard to restore that faith... and if you CAN do it, it is going to take decades to do.
Decades where the selection processes are less partisan.
Decades where interpretations and decisions are less openly decisions made by ideologues for clear ideological reasons.
Decades where the powerful, rich, and influential actually face something that looks like justice and that has real consequences for them.
Re: The UN. There was a time when a situation like that in Ukraine would engender news about the UN every day. We have heard almost nothing from the UN. Last week, Timothy Snyder tore the Russian Ambassador to the UN a new one at a meeting of the UN Security Council, called by the Russians on the subject of "Russophobia"--ya think?--and I had to learn of it directly from Snyder's Substack.
There are no simplistic answers to the dilemma of the composition of the courts. Personal integrity and faithful adherence to stare decisis is imperative. Justices who adhere to these attributes are those who are historically proven to merit their position of trust. Unfortunately, many who fail these tests are thrust into their seats by those pursuing pre-ordained agendas.
Disturbing. Alarming. I've run out of adjectives. Wisconsin set up this cluster by using elections instead of appointments. And obviously neither side cares about the actual law. But when the Republican candidate attacks a Republican justice for voting for the rule of law, he outs himself as unworthy of the position.