head to head
how to choose the next supreme court justice
February 17, 2016 - The country is currently locked in a fiery debate over how and when to appoint a successor for Supreme Court Justice Antonin Scalia. Will President Obama be able get a new justice confirmed before his term ends, or will the Republican-controlled Senate block his efforts?
Since we cover elections at Ballotball.com, you might be thinking that judicial appointments are outside of our purview. Pure applesauce! We can shift the debate faster than you can say jiggery-pokery. We asked ourselves, if Washington is gridlocked and can’t figure out how to fill the bench, could we just cut out the middlemen and elect the judges directly?
To answer this question, we’ve looked to history (and our own wallets) for inspiration. Here’s latest installment of our head-to-head series--Andrew Jackson and Alexander Hamilton face off on the idea of electing judges. The winner gets to stay on their respective currency, loser gets replaced by Harriet Tubman.
Since we cover elections at Ballotball.com, you might be thinking that judicial appointments are outside of our purview. Pure applesauce! We can shift the debate faster than you can say jiggery-pokery. We asked ourselves, if Washington is gridlocked and can’t figure out how to fill the bench, could we just cut out the middlemen and elect the judges directly?
To answer this question, we’ve looked to history (and our own wallets) for inspiration. Here’s latest installment of our head-to-head series--Andrew Jackson and Alexander Hamilton face off on the idea of electing judges. The winner gets to stay on their respective currency, loser gets replaced by Harriet Tubman.
Who are they?
Jackson – Hero of the War of 1812, 7th President of the United States, beat up a would-be assassin with his cane after the gunman’s pistol misfired, and inspiration for the hit Broadway musical “Bloody Bloody Andrew Jackson” (warning, link is NSFW)
Hamilton – Revolutionary war hero, author of the Federalist Papers, 1st Secretary of the Treasury, and inspiration for the hit Broadway musical “Hamilton” (warning, link will send you down youtube rabbit hole until you listen to entire soundtrack)
Advantage: Hamilton (not going to lie, this wasn’t a fair fight. We’ve been binging on the cast recording of the Hamilton musical for the last 2 months)
Hamilton – Revolutionary war hero, author of the Federalist Papers, 1st Secretary of the Treasury, and inspiration for the hit Broadway musical “Hamilton” (warning, link will send you down youtube rabbit hole until you listen to entire soundtrack)
Advantage: Hamilton (not going to lie, this wasn’t a fair fight. We’ve been binging on the cast recording of the Hamilton musical for the last 2 months)
Position on judges
Jackson – Jackson’s entire campaign was about opening up the political process to the people (though by his definition, the people = free, white men). He opposed the Electoral College as being undemocratic and thought that voters should directly elect their senators rather having state legislatures do it for them. Electing judges was the next logical step. He believed that the judiciary was an important check on the abuses of government power, and that allowing the powerful to make judicial appointments was like letting the fox guard the hen house.
Hamilton – In the Federalist Papers, Hamilton makes it clear that judges need to be protected from shifting political whims by being appointed for life. Forcing judges to run for office would prejudice them to the point where they would always rule in favor of their political supporters rather than according to the law. A talented president or Congress could conceivably make everyone happy all the time through good policies, but a judge (by definition) has to make half the people that come to court unhappy by ruling against them. It’s unrealistic to expect that they can do this effectively and still run for office.
Advantage: Too early in the contest, let’s call this a tie for now
Hamilton – In the Federalist Papers, Hamilton makes it clear that judges need to be protected from shifting political whims by being appointed for life. Forcing judges to run for office would prejudice them to the point where they would always rule in favor of their political supporters rather than according to the law. A talented president or Congress could conceivably make everyone happy all the time through good policies, but a judge (by definition) has to make half the people that come to court unhappy by ruling against them. It’s unrealistic to expect that they can do this effectively and still run for office.
Advantage: Too early in the contest, let’s call this a tie for now
Dueling Record
Whose position on judges has become more influential today?
Jackson – Jackson’s ideas have really taken root. Jacksonian Democracy inspired states to begin changing their constitutions--today, 39 states elect some (or all) of their judges, including many state Supreme Court justices. You can also add the passage of the 17th Amendment which allows voters to elect senators directly, to Jackson's legacy.
Hamilton – U.S. Supreme Court justices are still appointed but it will be interesting to see how the fight to replace Justice Scalia turns the presidential election into a direct referendum on the court.
Advantage: Jackson
Hamilton – U.S. Supreme Court justices are still appointed but it will be interesting to see how the fight to replace Justice Scalia turns the presidential election into a direct referendum on the court.
Advantage: Jackson
Terrible thing they did that has nothing to do with judges but you should know about anyway
Jackson – The Trail of Tears: Yeah, you knew this was coming. In what can only be described as a death march, at least 4,000 Cherokee civilians died while being forcibly removed from their homes and taken to Oklahoma in 1838-39. And this is only the most famous instance of the incredible humanitarian terror that was President Jackson’s Indian Removal Policy. Over 100,000 Native Americans were taken west of the Mississippi River to clear land for American settlements. With so much land suddenly vacant, a whole new influx of African slaves were brought in to work for their white masters.
Hamilton – The Reynolds Affair: In 1796, Hamilton admitted to a decades’ long affair with Maria Reynolds. Not only that, but Maria’s husband knew about the affair and he allowed it to carry on as long as Hamilton paid him thousands of dollars to keep it secret.
Advantage: Hamilton
Hamilton – The Reynolds Affair: In 1796, Hamilton admitted to a decades’ long affair with Maria Reynolds. Not only that, but Maria’s husband knew about the affair and he allowed it to carry on as long as Hamilton paid him thousands of dollars to keep it secret.
Advantage: Hamilton
Head to Head winner: Alexander Hamilton
It seems antithetical that a website that loves elections and voting so much would side with a guy who is saying judges shouldn’t be subject to either. However, our overriding philosophy is that elections are a sport and every sport needs a referee to interpret the rules and decide who should be penalized. If you asked for a show of hands from players and fans about whether or not someone broke the rules, the home team would win every vote. Insulating the refs from this pressure is essential, even if it’s undemocratic.
Does this answer the question of whether the Senate should give in and confirm a new Supreme Court justice before the presidential election? Not really. Both sides are going to use the issue to excite their partisan bases and boost turnout in November. The only thing that is clear is that both Hamilton and Jackson would be displeased with the current situation. Hamilton would hate the increased politicization of the court, and Jackson would hate that a court with only 8 members will often be deadlocked and unable to rule on cases that check unbridled governmental power.