Friday, December 6, 2013

Nomination of American Justices

Nomination of American justices, as recounted by history, has been shrouded in political obscurantisms for over 200 hundred years stretching back to the creation of the great American nation. The American judicial system has become a victim of political exploitation depending on who is holding the reins of power in a nation divided along members having differing ideological thoughts and processes. Whenever there is a vacancy, the nomination of a justice to a bench depends on the political leaning of the prospective judge-applicant, his or her uprightness, professionalism, judicial disposition, philosophical thoughts, and level of expertise in constitutional law (Gerhardt, 1992). The most contentious judicial nomination in American judicial history was when Justice Clarence Thomas was nominated by President Bush and confirmed by the Senate as an associate judge of the Supreme Court of the United States resulting in widespread outcry that almost led to paralysis of judicial discussions. The president was empowered by the ‘Appointments Clause’ that allowed him to make the right choice in selecting Justice Thomas with the recommendation and approval of the Senate.

President Eisenhower who was a Republican nominated the highly influential William Brennan of New Jersey as an Associate Judge of the Supreme Court (Gerhardt, 1992) despite Brennan being a Democrat. Also nominated by Eisenhower were Justices Potter Stewart and John Harlan who were both strong supporters of the Republican Party. Eisenhower did so with the blessings of a Senate controlled by majority Democrats (Gerhardt, 1992). Partisan politics can be dangerous especially when it comes to the nomination and confirmation of Justices. Often, there evolve ideological divergences, political differences, and racial divisions when selecting justices.

Hudson (2010) opines that Congress is more knowledgeable than the selected members of the judiciary when it comes to obligating commerce power. Some justices have been known to pursue their own self-fulfilling agendas leading them to evade judicial conscientiousness (Dimino, 2005). I would suggest that the tenure of judges be limited to certain duration. Justices should not be allowed to sit on the bench until retirement or until incapacitation. There has to be a limitation on the number of years justices serve in the judiciary. Also, selection of justices should be representative of society since America is now a multicultural nation populated by people of walks of life. One other aspect regarding changes to the judicial system would require justices to be free from any political affiliation or alliance. I don’t see anything wrong if election of justices is left to the public to decide on an electoral basis.

References

Dimino, M.R. (2005). The worst way of selecting judges-except all the others that have been tried. Northern Kentucky Law Review, Vol. 32:2.

Hudson, W. (2010). American democracy in peril: Eight challenges to America's future (6th ed.), Washington, DC: CQ Press.

Gerhardt, M.J. (1992). Divided justice: A commentary on the nomination and confirmation of Justice Thomas. Faculty Publications, Paper 979.



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