Is There Really A Separation Of Powers When The Legislative & Executive....

[global1]

branches of government have their hands in nominating and confirming judges to the Judicial Branch?

If it is said that the Judicial Branch is political - I believe it is because of the hands of the Legislative and Executive Branches in this process.

There's got to be a better way of getting judges to fill the Judicial Branch.

[marylandblue]

1. Read "How Democracies Die" or some of the summaries online

They have examples of systems designed based on our Constitution that quickly devolved into dictatorship. So the whole separation of powers theory can't be right. The author claim rather that democratic norms keep it alive. One of our norms is that judges are nominated and approved based on qualifications rather than politics. This has been eroded over the years until we got to the purely political process today. This is a dangerous place to be that has deep implications for the next generation of judges.

[onenote]

6. The notion that politics doesn't play a major factor in who gets nominated to be a judge

is laughable. And has been forever.

[marylandblue]

7. Of course it plays a role, but the norm was to defer to the president

unless the candidate was clearly unqualified. They used not to scrutinize every decision and statement they ever made, but at the same time, the nominees used to answer questions about judicial philosophy more forthrightly. Also there was no preapproved list of judges who are guaranteed to rule certain ways but still refuse to say so in Senate hearings.

These norms were how we maintained an independent judiciary. Not just because the Constitution said they were.

[onenote]

9. So when did things change? And why?

Going back to the Nixon era, after Haynsworth and Carswell, who were rejected as much for their lack of stature and qualifications as anything, four of the next five nominees sailed through with virtually no opposition. The only exception was Rehnquist -- 26 votes were cast against his initial nomination and 33 against his subsequent nomination as Chief Justice. But just a few days after Rehnquist's confirmation, Scalia, who was every bit as conservative or more than Rehnquist, was confirmed 98-0. After that, things sailed along as before until you get to Bork, who was "qualified" in one sense but out of the mainstream. He was rejected. And things again settled in with nominees getting confirmed with little or no opposition. Until Clarence Thomas, who barely squeaked by. After that, Ginsburg was easily confirmed as was Breyer. Roberts was opposed by over 20 Senators and after that every nomination seems to have been contentious -- 30 or more no votes for Alito (42), Sotomayor (31), Kagan (37), and Gorsuch (45).

Point being that for some time now it has been a combination of factors -- temperament, politics, experience, that have been in play, with politics probably playing the biggest role.

[qazplm135]

2. The only alternative would be direct election of judges

with party nominees. Which would also be political but perhaps more democratic...but that would require a constitutional amendment.

[k8conant]

3. Non-partisan judicial elections is another alternative...

as is done at many state and local levels.

[qazplm135]

10. they would be non-partisan in name only

IMO

[MichMary]

4. It's Constitutional,

so the separation of powers is baked into it. If I recall from my h.s. civics, it's why SC Justices have lifetime appointments--their tenure outlasts Presidents. They can be impeached by the HoR and convicted (and removed) by the Senate, which is the "check" on the judiciary by the legislative branch.

If you think the judiciary is supposed to be apolitical, how would you suggest justices be selected?

[onenote]

5. Yes.

That's like asking if there's really a separation of powers when a president campaigns for members of Congress or vice versa.

[marylandblue]

8. Or if Congress kisses the president's butt, no matter how putrid it is