James Whitman, a Yale law professor, has used a European Commission statement disapproving Poland’s recent law restructuring its judiciary to attack the American judicial selection process. He argues that, like the Polish law condemned by the EU, our selection is overtly and dangerously political, making the country’s judiciary subservient to the rule of the majority.
First, Whitman’s use of the Polish analogy is misguided. The Polish law allows for the dismissal of 40 percent of their Supreme Court and subsequent replacement by other judges. Thus, it is a court packing plan. For two centuries, America has both selected judges through a political process but also followed norms against court packing. Franklin Roosevelt’s scheme to add a large number of justices to the Supreme Court was soundly rejected even though Democrats overwhelmingly controlled Congress. A recent plan put forward by a colleague to create many lower court judges while the Republicans controlled Congress got no traction from anyone else on the right.
Second, Whitman ignores the perils of a selection process divorced from popular consent. The EU statement calls for judges to be selected by their judicial peers. Whitman claims that this kind of selection process assures that judges are “socialized into the values of professional independence that are the sociological foundation of a meaningful rule of law.” This contention completely neglects the danger that the insularity of such a process is itself threat to the rule of law, because it allows a self-appointed group to perpetuate themselves, regardless of whether they are following the law. Small self-selected groups in society can have radically different values from the society as a whole (law professors come to mind), and this kind of cultural and ideological homogeneity is likely to lead to favoritism to certain groups and causes that is in tension with the rule of law.
The federal model of judicial selection of presidential appointment and Senate confirmation is superior to judicial self-selection, particularly for nations, like the United States, where the judiciary wields substantial power to negate the decisions of the democratic branches. With selection through democratic representatives the judiciary becomes more heterogeneous, both in experience and in ideology. One might worry that because of this selection process the judiciary will simply follow the current majority will. Nevertheless, that risk has not been realized, because the Court has not infrequently invalidated legislation enacted by majorities. There are two important reasons for the judiciary’s willingness to buck current majorities. First, federal judges serve a long time given that they have life tenure and thus the judiciary is composed of justices selected by many different political constellations, not simply by the current majority. Second, again because of life tenure, judges and particularly justices are concerned with the long-term reputation, not just pleasing the evanescent majority that put them there.
I do not believe our federal model is perfect. Death and ill health play too much of a role in the timing of Court vacancies and thereby the selection of Supreme Court judges. As Steve Calabresi and Jim Lindgren have argued, the nation would be better off if all justices had lengthy fixed terms, which were staggered to assure that each President got an appointment each term. But that change would perfect a system of political selection, not transform it.