Survey Says . . .

July 9, 2010 2:20 PM

A recent survey indicates that Americans are split on whether Supreme Court Justices should be elected, and a majority favor expanding constitutional protection of rights, incuding gender equality. The survey, based on recent interviews of 1000 Americans, was just presented at the Aspen Ideas Festival by Mark Penn , CEO, and Don Baer, Chairman, of Penn Schoen Berland, the market research and consulting firm that conducted the survey. The margin of error is 3.1% overall.
posted by bearwife (44 comments total)

Mark Penn...Mark Penn...isn't he the guy who lost an election because he didn't know that the electors in Democratic primaries were apportioned proportionally?
posted by goethean at 2:23 PM on July 9, 2010 [1 favorite]

"States with a larger pop. should have more representation in the U.S. Senate."

What? That's what the House is for.
posted by reductiondesign at 2:26 PM on July 9, 2010 [5 favorites]

Electing Supreme Court justices is the only idea worse than appointing them for life.

Give them term limts and then get them the fuck out of there. Do we really need Alito and Scalia wiping their asses with the constitution for the next 3 years?
posted by Afroblanco at 2:28 PM on July 9, 2010 [2 favorites]

(30 years)
posted by Afroblanco at 2:28 PM on July 9, 2010 [2 favorites]

Direct election of Supreme Court Justices is one of the stupidest ideas that I can think of. I'm not a big fan of the current court but two years ago 46% of the country thought that electing Sarah Palin to be Vice President was a good idea. Who knows what nutcase could get elected to the court?
posted by octothorpe at 2:28 PM on July 9, 2010 [6 favorites]

My God, can you imagine the campaigning for the Supreme Court?
posted by toekneebullard at 2:32 PM on July 9, 2010 [2 favorites]

I wonder how abortive the civil rights movement would've been if justices were elected, rather than appointed.
posted by cellphone at 2:33 PM on July 9, 2010 [3 favorites]

One problem I've heard about the idea of term limits for Supreme Court Justices is the implications of a Justice having to answer to anyone after serving on the court. We don't want these folks needing to get work later.

A book that opened my eyes to some of the limitations of our quite outdated constitution was How Democratic is the American Constitution.
posted by serazin at 2:33 PM on July 9, 2010 [7 favorites]

I wouldn't mind seeing a mandatory retirement age for the court though.
posted by octothorpe at 2:36 PM on July 9, 2010 [2 favorites]

Mark Penn...Mark Penn...isn't he the guy who lost an election because he didn't know that the electors in Democratic primaries were apportioned proportionally?

Pretty much, if H. Clinton had hired someone competent we might have a different president right now. (not a statement of judgment of the quality of the current president or an indication of desire one way or the other for a different president) If there was anyone she should have been angry at after that bruising primary it should have been Penn.
posted by edgeways at 2:37 PM on July 9, 2010

If the SCOTUS was elected there probably would be a mechanism to recall them as well... generally a piss poor idea all around.
posted by edgeways at 2:38 PM on July 9, 2010

I think that "national referendum" for Constitutional amendments is a totally shit idea, too.
posted by Mister Moofoo at 2:43 PM on July 9, 2010

My God, can you imagine the campaigning for the Supreme Court?

(Start SCARY MUSIC.)

JUDGE CRAWFORD believes the US Constitution supports gun control (silhouette of Revolutionary War soldier), abortion (angelic, blue-eyed baby in a mother's arms), and gay marriage (Carson from QEFTSG, or Lafayette from True Blood). He believes terrorists have civil rights (footage of Osama bin Laden, scare zoom) and that God Almighty has no place in public schools (child sitting in playground dirt, crying).

And yet JUDGE CRAWFORD thinks he's right for the US Supreme Court? (slow close-up of smiling Judge Crawford, then a big red X over his face, add loud clanging sound effect) WRONG.

(Fade to black. Start FIFE AND DRUM MUSIC.)

JUDGE HARRIS understands America. (Judge Harris shaking hands with construction workers, tossing the football in the yard with his son.) He knows what the Founding Fathers really meant when they wrote the Constitution. (Judge Harris in a leather-bound chair, shelves of books behind him, reading a book, wearing glasses, furrowed brow, nodding.) And he's not afraid to save America from secular liberals. (Gavel slams down in slow motion, deafening boom.)

(Judge Harris, sitting on porch swing, his arms around his wife and two boys, beaming.) "I'm Judge Harris, and I approve of this message."

(Flag waving in slow motion, Mount Rushmore behind it.) If you love America, vote Judge Harris for the US Supreme Court.
posted by Marisa Stole the Precious Thing at 2:49 PM on July 9, 2010 [19 favorites]

We get the President we deserve, we get the Congress we deserve ... now you want us to get the High Court we deserve? No way!
posted by RobotVoodooPower at 2:56 PM on July 9, 2010 [5 favorites]

I'm looking forward to voting for Hank "The Hangman" BMW for Judge.
posted by entropicamericana at 2:59 PM on July 9, 2010

Oh god, that is such a disaster. Let's take the increasing problem of politicized judiciary and make it worse.

Give them term limts and then get them the fuck out of there. Do we really need Alito and Scalia wiping their asses with the constitution for the next 3 years?

Well I for one think term limits are never a good idea, but as a progressive, I'm even more opposed to term limits for Supreme Court justices, who on average have a slight liberal drift over the course of their appointments to the supreme court. You think there aren't a few hundred thousand Alito/Scalia types out there? Actually, even worse, as we'd be scraping the bottom of the barrel in no time, and getting conservatives who only pay lip service to constructionist principles, and are actually engaged in a kind of conservative judicial activism.

I hate this pernicious term limit idiocy. It seems to only assure a race to mediocrity, and is in the end a defeatist cynical philosophy of those with no hope.
posted by BrotherCaine at 3:08 PM on July 9, 2010 [1 favorite]

Civics education. Can we? Please? For real?
posted by Miko at 3:10 PM on July 9, 2010

Mister Moofoo: "I think that "national referendum" for Constitutional amendments is a totally shit idea, too."

But that's worked out so well for California!
posted by octothorpe at 3:11 PM on July 9, 2010 [1 favorite]

I love how people keep thinking that injecting politics into things will fix them. Such a reasonable notion given our experience of politicized processes to date.
posted by Durn Bronzefist at 3:17 PM on July 9, 2010 [1 favorite]

What we need is a way to make congress and the senate dependent on massive donations from corporations and such. I mean, senators and congresspeople actually spend most of their day fund-raising. Think about that, they spend more time begging rich people then they do actually working on legislation or talking to interested parties who don't pay.

I think if that stopped, it would solve a lot of problems. At least from my perspective, since I'm not a corporate overlord.
posted by delmoi at 3:21 PM on July 9, 2010 [1 favorite]

The Supreme Court is there specifically to make unpopular decisions. Making them electable would be a terrible idea.
posted by empath at 3:37 PM on July 9, 2010 [8 favorites]

I think we should set aside a certain percent of senate seats to auction off to the highest bidder, with no limits on campaign donations -- perhaps 20%. Then we could actually have the Senator from Exxon Mobile and be honest about it. The rest of the house and senate would be banned from accepting campaign donations beyond, say, $100 per individual, and only from people in their district, and no corporate donations.
posted by empath at 3:39 PM on July 9, 2010

Oh, and 100% of the money from the auctioned seats would go to health care or something like that. So no big corporation donations to pay for extraordinarily expensive media campaigns.
posted by empath at 3:40 PM on July 9, 2010

"Senate by lottery" would also be a hilarious idea.

In fact, there's plans in the works that this fall in Iceland, there will be a "people's parliament". No politician or party-affiliated official is allowed to run. This parliament will discuss and vote on ideas regarding the re-writing of the constitution. These ideas will then be compiled and handed to a committee for general recommendation. I'm still on the fence about the idea, because on the one hand, I'm all in favor of the people having the input the shape their own constitution. On the other hand, just because someone isn't a politician doesn't mean they aren't shaped by political - and financial - forces. I just hope the assembled body represents enough of a cross-section, and exercises an objective enough mindset, to draft a new constitution that really works. Fingers crossed, I guess.
posted by Marisa Stole the Precious Thing at 3:48 PM on July 9, 2010

There is more to the survey than what appears to be a split vote on electing Justices. (Background: non-federal judges stand for some form of election in 39 states.)

In addition,

61% believe that the Constitution should protect more rights than it does currently (such
as equality regardless of gender, which 70% support).

Only a quarter of respondents are satisfied with the current
system, and nearly 70% say that it functions worse than the framers intended.

nearly 60% of Americans feel there’s too little collaboration between the two parties to
produce results for the people.

Americans prefer divided government (in which the
executive branch is controlled by one party, and the legislative by another) by a 2 to 1 margin.

74% say that they want to abolish the Electoral College.

53% think that Congress should do away with the filibuster
posted by bearwife at 4:18 PM on July 9, 2010

74% say that they want to abolish the Electoral College.

Oh, hell yes.
posted by Marisa Stole the Precious Thing at 4:47 PM on July 9, 2010

I've lived in states where we had elected judges all the way up to the state supreme court. People like Roy Moore get elected as demagogues and embarrass everyone who's ever held the legal system in high respect.
posted by a robot made out of meat at 4:58 PM on July 9, 2010 [1 favorite]

I've not heard of too many Justices taking payoffs from people who want them to vote a certain way.
Nor have I seen streams of lobbyist dispensing favours in return for private-sector jobs.

I'd say the current system works just fine.

74% say that they want to abolish the Electoral
College.
I'd honestly be surprised if 74% actually knew what the Electoral College was.
posted by madajb at 5:21 PM on July 9, 2010 [1 favorite]

I'd honestly be surprised if 74% actually knew what the Electoral College was.

That's where them snooty elitists went! Where they ain't won a cham-peenship in jack shit since like never. Fucking liberals.
posted by ROU_Xenophobe at 5:38 PM on July 9, 2010

I'd honestly be surprised if 74% actually knew what the Electoral College was.

That might get at the heart of it.. what where the cross-tabs of the survey? Was a truely random survey or where they pre-screened to actually know a little about how the current system works? All it really says is that it was 1000 online survey results. Shit man, who puts a lot of credibility in that? A MOE of +/- 3.1%, where did they pull THAT number out of?
posted by edgeways at 5:46 PM on July 9, 2010

Oh wow oh wow oh wow these are bad ideas (about the judiciary, I mean. Definitely need to get rid of the Electoral College.) The court is designed to determine the constitutionality of (presumably) popularly created laws. Electing them would make them a rubber stamp for congress when they're already too much of a rubber-stamp for the Executive as it is right now.

I can see more where the idea of term-limiting them would seem to have merit, but no, that creates problems of its own as well. The law needs to have more consistency then that, for one thing, and knowledge and understanding of the Constitution is the sort of thing which continues to develop through practice. Anyway, the reason that we have so many SCOTUS Justices is because it keeps any one of them from being too powerful without forcing us to resort to term limits on them which, as serazin noted, could be corruptive in a similar fashion to judicial elections (I can't believe most states still have those, but by my understanding that system was created and continues to be held up by political machines. At least that's definitely how it works in New York.)

As for Scalia and Alito, well... Alito hasn't really written anything yet, so I can't say much about his individual reasoning. Scalia seems to write every other opinion, and though 9 out of 10 times he'll be made of obstinate evil, on the tenth one he'll come down on the liberal side and write the comprehensive dream opinion.

The one who really scares the shit out of me is Roberts, who is not only super-young, but who writes his opinions based on shifting the constitutional rights question to the "compelling interest" test, and then deciding how compelling the interest in question is based on seemingly purely partisan grounds. That's how we got Morse v. Frederick, where a kid's free speech rights on his own family's property were curtailed because they made reference to drugs, which the school had a "compelling interest" to stifle. It's how we got the recent Holder decision where it was deemed illegal to teach historically violent groups to non-violently seek solutions to their problems because there was a "compelling interest" in just killing the terrorists instead.

Those aren't just bad decisions on their face (though they certainly are that as well) but they are bad precedent and bad practice, dangerously politicizing the court because so many questions could be framed in that way, and that framing has no clear decision-making precedent for determining what is or is not compelling.

But here's the beautiful thing: Roberts could, over the break, realize how bullshit his methodology is, and his opinions could start changing. It's happened before, with Kennedy. Keeping the Justices sequestered away means that they have a lifetime's exposure to the Constitution and different thoughts about it, instead of to politics. Over time, as one settles in, the tendency is to preserve the rights enshrined therein - you work for the Constitution, after all, no longer for any individual or party.

There are still problems, of course (as implied above, I doubt any President has ever nominated a prospective Justice based on their thoughts that the powers of the Executive should be more limited) but in general, it's not a system I think we do well by messing with.
posted by Navelgazer at 5:50 PM on July 9, 2010 [2 favorites]

Also, this bit is awesome: "While Republicans support a literal interpretation of the text and Democrats a more living interpretation consistent with the times, Independents are split down the middle, making this the single most contentious constitutional issue polled."

Not to be snooty, but unless this survey was made up entirely of Constitutional legal scholars, that statistic is entirely meaningless. It merely reflects the fact that Scalia is almost always referred to in the media as either a literalist or originalist, and that the liberal judges are called "activists." A question like that really needs ten or more follow-up questions to make any sense of what the person answering it thinks they mean.
posted by Navelgazer at 5:57 PM on July 9, 2010 [1 favorite]

I've thought the seventeenth amendment was a bad idea since high school civics. Electing the Supremes? Screw that.
posted by codswallop at 6:32 PM on July 9, 2010 [2 favorites]

Yeah. I've never been quite sure what I think about the Seventeenth. On the one hand, it's all I've ever known, obviously. Plus in an ideal world more direct-election would generally be a good thing for our lawmakers. On the other hand, experience has taught me that there are some things better discussed and worked out in back rooms. There's some aspect to direct election of Senators which leads you to wonder what the benefit of a bicameral legislature is at all now. Not that finding a distinctly American way to mimic the House of Commons and the House of Lords ever made that much sense, when you think about it (and makes much less sense at the state level) but any sense it makes at all is in having a house of the people balanced against a house representing the interests of state government.

Senatorial appointment would also make people pay a lot more attention to the Gubernatorial elections, which is good, because local politics are where things happen anyway.

But then I think of Blagojovich, and I remember just how much graft would make its way into those appointments, and I get discouraged again.
posted by Navelgazer at 6:44 PM on July 9, 2010

non-federal judges stand for some form of election in 39 states.)

Right, but this was one of the major impediments to civil rights and social justice from the Reconstruction period through the federal enforcement of the Civil Rights Act in the 1960s.
posted by Miko at 7:00 PM on July 9, 2010 [1 favorite]

My God, can you imagine the campaigning for the Supreme Court?

Sure can!

[I live in Arizona, we've been (re-)electing Joe Arpaio for the last 18 years]
posted by hamida2242 at 8:16 PM on July 9, 2010 [1 favorite]

I'd honestly be surprised if 74% actually knew what the Electoral College was.

An additional 12% want to abolish the Electrical College.
posted by kirkaracha at 9:42 PM on July 9, 2010 [1 favorite]

Polls say all sorts of interesting things. Among the latest: Obama is/isn’t a socialist: 55/39. Polls are a lousy way to make (or back up) policy.
posted by Jahaza at 10:58 PM on July 9, 2010 [1 favorite]

People actually give Mark Penn money for his "ideas." LOL.

Further proof that in punditry and in Washington in general, you can only fail upwards.
posted by bardic at 11:08 PM on July 9, 2010

Americans are split on whether Supreme Court Justices should be elected

Well, that's too bad for half of them, because that's not the way it works here. End of story.

You can have your fucking 55mph bullshit but don't be fucking around with the important stuff.
posted by Civil_Disobedient at 4:42 AM on July 10, 2010

Yeah, electing Justices would be a very, very bad idea. We elect the president and congress, who picks and approves the Justices. That's as close as we want to get. We want the Justices to be beholden to no one, to be comfortable to make rulings that are constitutionally correct without even the glimmer of a suggestion that they are doing it for any reason except that they believe it is correct. I'm sure the vast, vast majority of judges make untainted decisions, don't get me wrong. But Justice doesn't just need to be untainted by political whims and corruption, it also has to have the appearance of untaintedness. The lifetime appointments do that.

Hell, shit started to go downhill when we started electing Senators.
posted by gjc at 6:09 AM on July 10, 2010

Civics education. Can we? Please? For real?

Exactly. Dear People Who Think Electing SCOTUS Justices is a Good Idea: Separation of Powers and Checks and Balances: Ur Doin it Wrong.
posted by Dr. Zira at 8:38 AM on July 10, 2010

just popped in here to say, thank you for including margin of error. I do not see it often enough.
posted by d. z. wang at 9:04 AM on July 10, 2010 [1 favorite]

It seems like every news outlet these days runs a comment feed below the actual news so that 'real people' can have their say. I have to say that I was always fond of representative rather than direct democracy, but those comment feeds have made me a little bit rabid on the subject.

We do not need to elect Supreme Court Justices, since undoubtedly more than half of the people who would be voting have no more idea what they would be voting on than would a cow if we tried to get the cow to vote. And even at that, making the assumption that less than half would have any clue is generous.
posted by winna at 9:27 AM on July 10, 2010