Thinking about the election in a few weeks has really highlighted just how chaotic our Supreme Court Justice appointment process is. I think the intention of the Founding Fathers was to make the Supreme Court less responsive to political pressure by giving the justices lifelong appointments, but this has had at least one very strange consequence: Supreme Court judicial philosophy is chaotic in the sense that it's future has very little relationship to its present.
Voters have short attention spans. Decisions on whom to vote for are often made in the last few weeks before an election and are based on policy preferences that take into account little more than the past year... maybe less. This short time frame is fine for electing officials who serve two-, four-, or even six-year terms, but should e.g. the state of the war in Afghanistan really have a strong influence on a capital punishment case 30 years from now? Should the financial crisis influence abortion law? Should preference for one energy independence plan over another affect free speech law?
When our immediate political concerns are juxtaposed with the kinds of cases the next Supreme Court justices will probably be deciding over the coming decades, the chaotic nature of the system is revealed. If voters support Barack Obama because he wants to pull our troops out of Iraq, they might also get stuck with mandatory "equal pay" for women when he puts Hillary Clinton on the Supreme Court. Or, flip it: voting for John McCain because he was right on the surge doesn't necessarily mean that you'll agree when his appointee overturns Roe v. Wade.
It doesn't make sense for matters that are so unrelated to be tied together politically. I'm not sure I've got a better system in mind, but I bet we can come up with something. Here are some options, but each has problems of its own:
- Shorter terms. Back when the Constitution was written lifespans were much less anyway, so why not limit justices to a single 20-year term?
- Elect justices directly.
- Elect justices regionally. The states in each circuit get to elect one justice together.
I think I like the first the best, what about you?