What are the pros and cons of election of judges by legislature?

When it comes to the appointment process of a Federal Court Judges there appear to be few defensible arguments in favor of the current process. With the only pro to the process being the ability to "vet" the potential nominee, which can also be done by a committee of Federal Administrators, ultimately it seems the Cons outweigh the Pros in this political process, as outlined below.

What makes a good judge? Is it being impartial, unbiased and immovable by the politics of the age? Is it age and wisdom? Or is it a concept of justice that must be preserved rather than a focus on conflicts of interest? There seem to be many traits to which a judge must possess. It is quite clear however that one trait rises above the rest that a judge, let alone a Supreme Court Justice must observe and abide by. This trait, as well stated by Caroline Kennedy is a judiciary that is independent from political thought, and the political positions of the age. In other words, a Supreme Court Justice is required to place their politics, biases, religion or any sort of personal characteristic out of their decision-making, and rule simply in defense of justice and the Constitution of the United States of America. However as time is passing it is becoming quite apparent that this is no longer the practice, or within the capabilities of Supreme Court Justices, with politics sprouting up all over the courtroom.

It seems in today’s United States Supreme Court decisions are being made along party lines, which is not only undemocratic by eliminating the checks and balances foundation, but also unconstitutional in nature completely, the question is, how has it reached this point? Simply put, the Constitution of the United States made it that way.  The President of the United States under Article II Section III of the United States Constitution, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In other words, the President of the United States has the power to appoint whomever he sees fit to the Supreme Court when there is a vacancy. The implications of this seem to be clear, the President therefore will almost always appoint a Justice to the Supreme Court that is sympathetic to his cause, or at least share the same political affiliation. This will ultimately lead to the following, when a piece of legislation reaches the floor of the Supreme Court, the Justices that have been appointed by the current President of the United States, or at least a President from the same political party, will act in accordance with this party, therefore in favor of the bill.

This has most recently been seen in a case that was presented to the Supreme Court’s floor in 2001, when the New York Times filed a lawsuit against the Electoral College electors from the state of Texas for casting their votes for then President George W. Bush during the 2000 Presidential Elections. Electors that sit on the Electoral College are not allowed to cast their votes for a candidate from their own state, however, each of the Electoral College electors from Texas cast their votes for President George W. Bush and Vice President Dick Cheney. Now it would seem as though this would be a clear-cut case for the Supreme Court, considering the acts of the Texas Electors were blatantly unconstitutional. However that is not exactly how it turned out. President George W. Bush before this controversy emerged on the floor of the Supreme Court appointed a Supreme Court Justice who was confirmed one month prior.

Now when this case that should have had a clear ruling from the start emerged on the floor of the Supreme Court, this Justice as well as Justice Samuel Alito (also put in place by George W. Bush), turned the tables ruling in favor of the President. Now why would these individuals perform such an act? It seems quite clear, these justices were put in power by the President, therefore were loyal to him, as well as shared his political agenda, therefore proving that their decision to rule against the constitution and for a politician was not in defense of the Constitution they hold so dear, but in defense of their political ideology. Levinson writes on this very issue in his work stating, “There is no way, nor should there be a way, to prevent politics from playing an important role at the nomination and confirmation stages, at least so long as we place nomination in the hands of a politically sensitive President, and confirmation in the hands of an equally attuned Senate.”

Now I would tend to agree with Levinson’s statement. There does not seem to be a way to eliminate political ideology from the appointment process of Supreme Court Justices, however what Levinson fails to consider is the consequences of this rationale. If politics and political bias is used as a standard against which to measure the capability and compatibility of Supreme Court nominees then the entire concept of a Supreme Court falls. Why not merely elect a cohort of lawyers every few years to deliberate on the very issues that fall upon the Supreme Court’s shoulders? It seems that the Supreme Court of the United States, from it’s beginning, was slowly drifting away from its intended responsibilities, that being to provide unbiased, unhindered, protection of the United States Constitution, all due to Article II, Section III that gave the power to a politician to select those that oversee justice.

Source: Levinson, Sanford (2006-09-28). Our Undemocratic Constitution:Where the Constitution Goes Wrong (And How We the People Can Correct It.)