Politics And The Courts

I hate sports analogies, but sometimes, they just fit.

For those of you who are sports fans (I am not one of you), here’s a question: how much would you enjoy watching a game if you knew that the umpire or referee had been bribed, or even just recruited from a group of rabid fans of one of the teams on the field?

The decisions America’s founders incorporated in our constitution haven’t all stood the test of time–exhibit one, the Electoral College–but one that has was their determination that  the judiciary should be protected from political pressure to the extent possible.

There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.

When we discussed judicial independence in my classes, I didn’t use the sports analogy; instead, I would pose a different hypothetical: let’s say you live in a small town where you are a party to a lawsuit. Trial is in the local court, where the judge has been elected. What if the lawyer representing the other guy was one of the biggest donors to that judge’s campaign, and is a regular at the judge’s Wednesday night poker get-together? If the judge ruled against you, how likely would you be to believe you’d been judged fairly and impartially?

Or let’s assume a judge is presiding over a high-profile case in which a majority of local folks are emotionally invested. Assume too that controlling law is on the side of the publicly disfavored position–and further assume that the judge is facing re-election. She’s a widow with a mortgage and a couple of kids in college, and she knows that following the law means losing the election.

You get the picture. Even if every judge in these hypotheticals is a paragon of virtue who ignores personal considerations and “calls them like s/he sees them,” public trust in the process would be hard to maintain.

Separation of powers was the division of our government into three branches. Two of those branches were intended to be answerable to public opinion, even public passion. The third was tasked with being an impartial arbiter, insulated from electoral pressure. When judges are wrong–and there are plenty of times they will be–we want them to be wrong because they misread the law, not because they were in thrall to donors or interest groups.

That’s why the constitution requires an appointed judiciary in the federal courts, a decision that has slowed–but certainly not stopped–efforts to politicize America’s court system.

It is admittedly impossible to keep politics completely out of the judicial selection process–especially selections for the Supreme Court. But the problem is far worse in the large number of states that continue to elect their judges. A recent report from Governing Magazine shows just how far state-level politicians (mostly, but not exclusively, Republicans) will go to game the court system.

Last Monday, Republicans in the Louisiana House tried to pass a proposed constitutional amendment to redraw election districts for the state Supreme Court, while adding two seats to it. The effort came up short, but it was just the latest move by a state legislature to try to change how high court justices are elected. Just three days earlier, Illinois Gov. J.B. Pritzker, a Democrat, signed a bill that redraws election districts for his state’s Supreme Court, a move observers believe is aimed at maintaining his party’s 4-3 majority in next year’s elections. And Republicans in Montana and Pennsylvania passed bills in the past year to create districts for their high courts, both of which currently have progressive majorities and whose members are now elected statewide.

The article focused on what it termed “judicial gerrymandering,” and like all gerrymandering, the goal is unearned power. In states across the country, politicians are redrawing their state’s high court election districts in ways that favor their party’s candidates.

Admittedly, there is no way to entirely insulate courts from political pressures. Here in Indiana, where a judicial nominating committee considers candidates for the State Supreme Court and sends three names to the Governor, it’s a given that the ultimate choice will be someone from the Governor’s political party. For that matter, the committee members will be impressed (or repelled) by the identities and politics of the people “lobbying” for particular candidates.

Nevertheless, Indiana’s process significantly attenuates the role played by partisanship. It recognizes that when the umpire is effectively a member of one of the teams on the field, the teams and their fans are all losers.


  1. “There are sound reasons that federal judges are not elected–not “answerable” to the public in the same way that members of the legislative and executive branches are.”

    BUT…federal judges, especially the Supreme Court nine, are now chosen by, supported and “answerable” to the legislative and executive branches. Mitch McConnell is still the “leader of the pack” on the issue of hearing and seating all federal judges.

    There may be no way to “insulate courts from political pressures” but the Constitution REQUIRES elected members of both branches uphold the responsibilities of their sworn oaths of office to uphold the Constitution…somehow McConnell is immune to this responsibility and maintains that power over the Senate and the federal court system. The way the Constitution is worded, this appears to be like those roundabouts we are seeing crop up at street intersections where traffic is routed in a circle to continue in a straight line or turn a corner, returning to the entry if you miss your turnoff. McConnell is leading us in those circles as the powers of his position maintain his abuse of power with no turnoff to escape him or his grasp on the legislative branch of our government…even in his current minority position.

  2. That was a long read which attempted to rationalize that the game wasn’t rigged, or at least Indiana pretends it’s not rigged. Either way — it’s rigged.

    I marvel at the daily onslaught I read about from alternative media of just how badly the entire system, from top to bottom, is set up to enrich those greasing the system with money. Imagine if the IndyStar was a progressive newspaper with an unlimited budget. This state would turn a dark shade of blue within a year. Subscriptions would go through the ceiling, and profits would soar. Or would they?

    I visit the Indy new’s sites on FB, which you can tell will bring a strong ignorant response from Hoosiers. It’s almost a game now. “I just stopped by to see what Indiana’s racists had to say.”

    It’s become very predictable. Propaganda has been used to condition humans from a very early age. Much of what comes through TV is conditioning and programming. It’s about consumerism and buying stuff.

    Meanwhile, the government has used 1/6’s insurrection the same way they used the twin towers. While they claim they are clamping down on “domestic terrorists” who committed the “treasonous acts,” we learn the groups were infiltrated by goons. Just like the Islamic scare in this country and the Pulse Night Club tragedy. They are using these acts to justify passing laws to restrict our rights. These aren’t random acts of violence.

    The laws defining “domestic terrorists” include language about all sorts of social injustices associated with Leftist protestors like BLM and Antifa and Environmental groups. This was very predictable and was anticipatory from most progressives. They saw the US government pull this crap with the Patriot Act.

    Once again, when the Republicans have an opportunity, the flood gates open up for judicial appointments, but when the Democrats have the advantage, it’s all about “bipartisanship.”

    Are you starting to get the picture of how both “political parties” work together in unison to rig the game?? LOL

  3. If you need to require adherence to an oath, you need consequences for not doing so. Obviously, we have none.

  4. “What if” judges could not be nominated unless deemed qualified by the ABA (still politically neutral (I think)…gotta start somewhere….

  5. Politicians and Lawyers are not sometimes considered the most esteemed in terms of trust. A judge is usually going to be a political lawyer, just because they put the black robe on does not make them fair and impartial.

    It has always been this way. The courts have now become weaponized. Public Tax dollars collected can now be “laundered” so to speak and given to religious schools. Supposedly, the public tax dollars collected for schools follow the student, at least that is “legal” rationale to avoid the church-state separation.

    The Trump-Pastor Pence-McConnell team took the process of appointing judges to new lows.

  6. https://twitter.com/ForAuthors1/status/1375509622920908801/photo/1.

    So politics and sports analogies… Too easy. There is a term for the lowest substitutes on a football depth chart. They are the “scrubeenies”. Or “scrubs” for short. The entire Republican party is emerging as America’s scrubeenies. They never get to play. They are used to hold the blocking dummies (sometimes they are the dummies) and they never soil their uniforms.

    I can see non-entities like Louis Gohmert as the ultimate scrubeenie. MTG and Lauren Boebert are the water girls who accidentally filled the water bottles with bleach. Oops.

    I’m in a mood today…

  7. I have never believed life terms for federal judges was a good idea. I believe in long terms, but certainly not life terms, especially for US SCT judges. I love the idea of 18 year terms for US SCT judges with one justice’s term ending every 2 years. The problem now is that with life terms, the goal is to find someone around 45 so he or she can be on the court for 30-40 years. With 18 year terms, justices could be nominated who are older and more experienced.

    I’d love to dial back the appointment/confirmation process to the time when it was just about the person’s qualifications. Not sure how they do that. Democrats deserve a lot of the blame for what was done to Robert Bork, who was maybe the most qualified person ever nominated to the SCT. That was the start of the idea that politics and not qualifications was what mattered.

    Another part of the problem is that Democrats increasingly decided that it was okay for federal judges, especially Supreme Court justices, to act as legislators by adopting, via the guise of judicial interpretation, certain preferred public policies. When judges ceased being umpires and became players in the political game, it shouldn’t be surprising that the selection process for those judges began to resemble a political campaign.

    But I’m also not a fan of Indiana’s version of the Missouri Plan for selecting appellate judges. I was at a legal seminar when a former advisor to a former Democratic Indiana Governor said the way they handled these appointments was that she would call the Judicial Nominating Commission and tell them which candidate the Governor wanted to be on the list of the three finalists selected by the Commission. That person would end up on the list (regardless of qualifications) and the Governor would pick that person. Then you have the absurd retention vote. No Indiana appellate court judges, regardless of how bad a judge that person was, has come close to losing a retention vote.

    I also know someone very well who was on the Commission. He would tell me about all the behind the scenes lobbying and deal cutting that went on among members, which had nothing to do with the qualifications of the person.

    I very much disagree with the idea that Indiana’s system “attenuates” partisanship involvement in the selection process. It puts that partisanship and the associated politics behind closed doors. That is the worst kind of politics. Indiana’s system is actually worse than the federal system.

    By the way, I clerked for Indiana appellate Judge Paul H. Buchanan, Jr., the last judge to be elected statewide under the old system.

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