25 October 2009

In which I agree with Clarence Thomas.

My brother and I have a longstanding argument about the role of the Supreme Court, which I've written about here. Anyway, I was reminded of our argument when I saw this AP article.
Clarence Thomas...compared Senate confirmation to selecting the referees for a college football game in hopes of getting favorable calls for one team or the other. "That's all based on a particular outcome you want. That is the antithesis of judging. You're corrupting your process," he said. "I think the confirmation process is both unnecessary, it's uninformed with respect to what the court actually does and it's very dangerous."
A native of Georgia and the only current justice from the South, Thomas said the court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity, he said, and home states matter, too. "My goal is to have a court that is fair, and I think it's fair when we are fair in selecting people from all parts of the country, from all walks of life," Thomas said.
Thomas graduated from the Yale University law school. In all, eight of the nine current justices graduated from Ivy League schools.
Yes, and 100% of the current justices were promoted from the federal appellate bench. However talented they may be, that's a pretty shallow experiential gene pool.
Anyway, Thomas couldn't be philosophically farther from me on the spectrum, yet we share the same position on my two biggest complaints about SCOTUS. (A) It's overly homogenous, and (B) It's become a partisan political office.
The Constitution only requires the "advice and consent" of the Senate with regard to the president's federal judicial appointments. The current Senate confirmation process is something the Senate invented over the years and continues to follow by tradition. That is to say, the current iteration of the Senate judicial confirmation process isn't mandated by the Constitution. "Advice and consent" might be satisfied by distributing a candidate's CV to the senators, permitting no candidate interrogation, and deciding with a simple majority on a single yes/no ballot.
Clarence Thomas was elevated to the Supreme Court because of his partisan and extremely conservative judicial philosophy, and he's admitting that there's a problem with partisan court-packing. Folks, you know there's a problem when the beneficiaries of an unfair policy are complaining about that very policy!
The lifetime appointment clause was intended to insulate federal judges from politics, but the appointment process has centralized a judge's politics. The solution is that the confirmation process needs to be completely overhauled to de-partisanize it, or there needs to be a Constitutional amendment to impose terms on federal judges.
It's not as radical as it sounds.
What's radical is that the U.S. is the only country in the world whose constitution allows for lifetime appointments for judges. Of all the countries that borrowed from the U.S. Constitution — and there are legion — nobody borrowed this. Other nations apparently recognized that a lifetime political appointment is simply too dangerous to permit. It's a turd in our Constitutional punchbowl and it could and should be amended away with no ill-effects.
A workable solution was proposed here. Interesting read if you're into that sort of thing.

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