In USA Today, Glenn Reynolds (Instapundit/Tennessee): We should elect Supreme Court justices: The Supremes are functioning more like a legislature than a court, and no legislature is above politics. From the introduction:
As the Supreme Court, once a body that mostly ruled on purely legal questions, has gotten more and more involved with every aspect of American life, the Supreme Court appointment process has become more political. Senate confirmation used to be almost pro forma, without even a hearing. Then we got hearings, which have now turned into political circuses of their own. (Remember Clarence Thomas?)
Even the election of a President — the most important selection that we make as a nation — has become about the Supreme Court. Partisans of both Donald Trump and Hillary Clinton have argued that, whatever the flaws of their own candidate, the importance of not letting the other side make potentially transformative Supreme Court appointments is reason enough to stand behind him or her.
Making a presidential election turn on Supreme Court appointments has the effect of minimizing lots of other important aspects of the election. The argument in favor of it is that it applies some degree of democratic accountability to the Court. But if you want democratic accountability, why not eliminate the middleman? Why not elect the Supreme Court?
I agree with the basic descriptive conclusion. But another way to deal with the problem is to return the Supreme Court to being a primarily legal rather than political body. That is a core goal of originalism. (Whether it is a feasible one is a different question).
Posted at 6:01 AM