A strong case for electing members of the U.S. Supreme Court is being made in Washington, by the unlikeliest of advocates, namely the latest nominee to the nation's highest court and the senators charged with evaluating her qualifications and ultimately deciding her fate.
The selection process for Supreme Court justices has become a very bad joke. Nominations are nakedly political. The confirmation hearings are cynical, thoroughly political exercises. Senators make complete fools of themselves, like Alabama's Jeff Sessions when he compared corporations to black children suffering discrimination. Nominees either answer questions with empty blather or they lie through their teeth so as not to put in jeopardy their chance for a lifetime appointment.
If testifying under oath meant much of anything and if Congress had an ounce of nerve, there would be articles of impeachment pending against John Roberts for lying to Congress. The chief justice roundly condemned judicial activism and swore he'd be like an umpire calling balls and strikes, then proceeded down a path ensuring he will go down as one of the most radical judicial activists in the history of the Supreme Court. Roberts pledged allegiance to stare decisis, Latin for "stand by the decision," meaning courts are bound by previous decisions and what Roberts himself called "settled law." Once confirmed, he's been hellbent on overturning longstanding legal precedents that don't pass his ideological litmus tests.
Now Elena Kagan is telling senators that the ruling of the Roberts court in Citizens United v. Federal Election Commission giving corporations a free rein to spend as much as they want to influence elections is "settled law" (there's that term again) and should not be disrupted.
She can't possibly believe that. The federal Tillman Act of 1907 banned the use of corporate treasure in national elections, two years after Wisconsin prohibited corporate electioneering in state elections. These laws withstood legal challenges and attempts to repeal them for over 100 years. As recently as 1990 the U.S. Supreme Court upheld the constitutionality of prohibiting the use of corporate treasury funds in elections in Austin v. Michigan Chamber of Commerce.
Now that is settled law.
Yet the Roberts court saw fit to throw century-old laws and decades-old court precedents on the trash heap, installing a radical new order in American politics. The five strict destructionists on the Roberts court even managed to overlook the fact that the Supreme Court had already reviewed the federal McCain-Feingold campaign finance law in 2003 and again in 2007. They refused to see the matter as settled and did not hesitate to be disruptive, barely waiting for the ink to dry on the court's ruling in McConnell v. Federal Election Commission upholding the law's constitutionality before overturning it.
Nothing about this case changed between 2003 and 2010 except the court's composition. And now we are supposed to believe that Elena Kagan, who once said the Roberts court wrongly decided Citizens United, is of a mind to let that ruling stand for evermore.
Either Kagan is calculating and dissembling and willing to say or do anything to realize her life's ambition, or she is spineless and unprincipled and will make a most lackluster justice.
What we are getting with Elena Kagan is a mystery, just as it was with John Roberts. And Samuel Alito. And. . . .
For those who believe electing judges would introduce politics into the judiciary, I ask this: How exactly could the selection of Supreme Court justices get more political if we let the people decide instead of letting the politicians choose? Could the court's members be any more ideological if they were elected? Would lesser legal minds with thinner professional resumes be chosen by the voters? Could decisions of an elected court possibly be less based on fact, less grounded in the law and more partial to the rich and powerful than the rulings churned out in recent weeks, months and years by the appointed-for-life court we have now?