Are Justices Elected Or Appointed?
Nancy Gertner (2001), as an experienced federal trial judge, is in a good position to answer this question, but in a new book, she offers an important discussion.
In a chapter entitled "Who Is Elected?," she asserts that, "The justices of the Supreme Court have a mandate to rule based on what is true. The answer to the question, 'Who is elected?' is simply that each justice is elected."
She further explains that "a judge is only accountable to those who elect him, not to some invisible, mystical voter base." Therefore, as she admits, "Not every court opinion is shaped by the same considerations that guide the voters in an election."
The general rule in the law, she says, is that "nobody—not the executive, the media, the public or the justices—has the right to question the motives of those who wield the power to explain the judicial process."
The Federal Campaign Contributions
All these issues, however, come down to money, and the limits on how much a justice can receive. At the core of this issue is the specific fact that most judicial elections are not publicly financed or even publicly administered.
The justices seem to accept this, as Justice Alito agreed when he explained the arrangement in a Senate hearing on judicial nominations (see page 97): "A judicial election, when you think about it, it's, in effect, an election of judges." He went on to explain: "Judges are candidates, generally speaking. They are subject to criticism. The voters of a state hold a convention to select the judges, generally, of that state. In some cases, judges are elected directly."
He goes on to say that "[t]here is a separate system of judges, justices, who are elected by the people who live in the judicial district."
This distinction—that, in the case of a justice, a state accepts a federal justice into its circle, but then allows him or her to serve a full term, even though, because of the general election process, the person is financially vulnerable and has to build up a large donor base before the election, can seem puzzling to some.
If judges are to be trusted with the most important and substantial civil rights questions and interests, one would think they would be subject to the most careful judicial examination and evaluations. The incentives of judges to vote only within their narrow parameters would then be critical to preserving the integrity of the judicial process.
Efforts to explain and to justify this unusual arrangement have focused on motivating the justices to be more willing to explain the decisions and explanation of their judgments, and therefore, explain their reasoning to the public.
Judge Kennedy may be doing this, but when he was challenged to explain his vote on the DOMA case, his answer seemed motivated by his desire to make a formal statement of his rationale. He was acting out of a desire to clarify his own rationale, because he knew that the result of the DOMA case might go to the ballot, and that when he said, "I was judging," in the past, the effect was more negative than positive.
Perhaps his first impulse was to explain that, when the argument on the marriage law was discussed in court, the arguments that were presented focused on defining marriage as a relationship between a man and a woman. Kennedy suggested that, as a result of those discussions, the decision on what was "natural" in the community led the court to conclude that the institution of marriage and the institution of sex were equally important and related to each other.
In short, Kennedy used the argument that "defining marriage" is the same as defining sex as "natural," in order to justify his voting in favor of DOMA.
Since that decision, Kennedy has been working on elaborating his rationale, to make sure that his justification is not just stated in his actions, but explained as well.
He seems to do this by trying to justify his voting by engaging in a process of explaining his intent and why he voted a certain way...