The Politics Of Judicial Nominations, Electing Judges: Two Sides Of The Same Coin?

by Robert Thomas, InverseCondemnation, February 26, 2016

Here's what we're reading today, two pieces on seemingly unrelated topics:

• Gideon Kanner, "Give Credit to Judge Kozinski, The Prophet," about the bare-knuckle politics of the process for filling Justice Scalia's spot on the Supreme Court.  
• Ian Lind at Civil Beat: "Why Is This Unpopular Idea Still Alive At The Legislature?," about the proposal, which we noted here, to elect Hawaii state court judges, now being considered by the legislature.

We found these posts to be good companion pieces because in the first, Professor Kanner points out that the nomination and confirmation process is political because the business of judging is political ("So with a judicial atmosphere like that, not only in takings law but in other fields as well, we should not be surprised when citizens eventually decide that what comes out of the marble palace in Washington, is actually more like a choice of preferred policies than formulating reasoned rules of law, binding in future cases."). He notes that Ninth Circuit Judge Alex Kozinski "wisely admonished his fellow judges that 'When we act act like politicians, we will be treated like politicians.'"

With that background, which isn't limited to federal judges, the second piece by Mr. Lind asks why the measure to elect judges is moving forward, despite massive establishment opposition. As he writes,"[a] letter signed by attorney Calvin E. Young and 14 other former presidents of the Hawaii State Bar Association argued strongly that 'the Judiciary is not a vehicle for public input, and justices and judges should not take public opinion into account when making decisions.'" We're not so sure this was the issue the measure addresses, and it might not be the public's opinion in judicial decision making that is fueling this; it might be a judge's opinion. He concludes: "What does this all mean? Hard to say. Perhaps the whole election scenario is simply a smoke screen to make Senate control of the reappointment process seem more palatable. Maybe it’s an expression of Senate frustration after being caught up in a couple of controversial judicial appointments, which can’t be a pleasant experience. Or perhaps this is just saber-rattling because some key player in the Senate didn’t succeed in getting one of their personal choices through the Judicial Selection Commission and on to a short list of nominees."

As Judge Kozinski said, if judges act like politicians, shouldn't they be treated like politicians? 

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