Opponents of Supreme Court elections — among whom I probably fall — will have to come up with better arguments than "people are too stupid" if they expect to prevail. And if the people really are too stupid to take part in these decisions, then what about all those interest groups that claim to represent the people?
I was much more negative toward Davis's proposal in my NYT review of the same book:
Where would the candidates come from? Davis suggests the president could nominate a slate of candidates, and he imagines the Senate holding hearings and issuing reports. But what would the campaigns look like? And what would stop these elections from degenerating into referendums on, say, abortion?
One searches vainly in the pages of this book for any discussion of the changes elections might work on the Court's own conception of its role. It is already accused of being too political. Currently, at least there is an effort to appoint highly qualified jurists who will uphold the rule of law. Even if political ideology underlies the process, the nominee is still generally someone steeped in the legal culture who is going to profess faith in legal principles. Electing justices would not just change the selection phase, it would reshape how justices thought about their role. What would happen to the culture of law once the justices had their own constituents?
UPDATE: I don't know if you've noticed that I've been tinkering with the subheading to this blog and have replaced the old description of the contents, first with a quote from Slate and then, just this morning, with an old quote from Jonah Goldberg. Now, it seems Glenn Reynolds is making a big pitch to get a quote up there. I'm sorely tempted! What do you think?
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