Glenn Reynolds has a radical proposal today: electing Supreme Court justices.
It goes against the (my) grain to consider changing a practice that dates from the earliest days of the republic, but Reynolds makes an intriguing case:
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?
The Court, as Reynolds points out, was appointed because it was supposed to be "above politics," but who today would say that the Court remains above politics? Reynolds also proposes that an elected Court would probably be more diverse than the current Court.
Ted Cruz took a lot of flak for proposing "retention elections" for justices, but Reynolds says that perhaps Cruz didn't go far enough.