Should Supreme Court Justices Be Elected By A Conclave Of Federal Judges?

A few weeks ago, Pope Francis passed away. The next pope will be chosen by senior clergymen called cardinals. The rules are simple. Only cardinals under 80 can vote. A two-thirds majority is required to elect a new pope but if no one reaches that number after a period of time, a runoff election is held between the two candidates who received the highest number of votes.

During the selection, the cardinals are kept hidden from the public and the voting process is kept secret. Even cell phone signals are jammed. This is done to prevent leaks from both the outside world and from inside the Vatican. The secrecy is meant to allow every member to vote his conscience free from public influence and possibly outrage.

The current method of selecting Supreme Court justices has been deemed overly political and even broken. Candidates are scrutinized on how they say they will vote on certain controversial issues (such as abortion or gun rights) rather than how they analyze the law. Also justices are suspected of retiring when it is politically expedient to do so or of staying on the job even though their physical or mental capacities are diminishing.

There have been calls for reforming how justices are selected. The most popular reform proposal is to have justices serve one 18-year term with vacancies happening every two years. The problem is that it does not guarantee that the court will be balanced, particularly if a major political party controls the presidency for a long time. For example, a Republican was president from 1981 to 1993. Presidents Reagan and Bush could have chosen seven of the nine justices under this system.

So how can politics be eliminated (or at least minimized) when selecting a Supreme Court justice? Perhaps we should consider electing them through a secret ballot similar to the papal conclave. This will only apply to potential Supreme Court justices. District court and appeals court judges will continue to be selected under the current rules of presidential nomination along with Senate confirmation.   

For starters, every Article III judge would get one vote although restrictions might be made to make the voting process easier. For example, like the papal conclave, judges over 80 can be deemed ineligible to vote.

Also, judges would have to meet at a central location to debate and vote. The most likely location would be the Chamber of the U.S. House of Representatives. Those who cannot attend this meeting will be ineligible to vote.

What percentage of judges would have to vote in favor for a candidate to become a Supreme Court justice? Considering there are more than 800 federal judges today, it would be difficult to obtain a supermajority, even if not all of them are eligible to vote. Would a simple majority be enough?

Most importantly, debates and voting must be done secretly. Some will not like this idea because they believe that the voters should own their vote and live with the consequences. Also, voters should not fear disclosing their vote since it is very difficult for a judge to be removed from office.

If Supreme Court justices are selected via secret ballot elevating one of their own, they could have a stronger incentive to follow the rule of law and interpret it correctly. They won’t be fazed by public pressure or feel the need to be loyal to the president who nominated them. Isn’t that what judicial independence is all about?

But this conclave plan is not perfect. It will be difficult to implement because it will require a constitutional amendment. Assuming both houses of Congress are willing to do this, they may as well make other changes such as specifically stating there will be only nine justices in the high court. Or they can impose term limits instead of life tenure.

Also, it will not completely remove politics from the voting process. Even in the papal conclave, there are liberal and conservative factions, and they will have to work out their differences.

Lastly, this idea is almost guaranteed to fail because the future will be unpredictable for both major parties. Most voters do not really care about objective court reform despite their loud screams on social media. They only care when it benefits them. In fact, they will be upset if the reform results in the choosing of justices that end up striking down laws they care about.

If the current system of selecting Supreme Court justices is broken, then should justices be selected solely by currently active federal judges via a secret ballot? Despite the pros and cons, this is likely to go nowhere because politicians are scared that it could one day negatively affect them and their party’s agenda. But that might be the very reason why this proposal could possibly work.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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