Well, you gotta hand it to him.

Photographer: Scott Olson/Getty Images

Trump's Best Idea Yet

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
Read More.
a | A

In spite of myself, I actually think that Donald Trump’s release last week of the names of 11 potential Supreme Court nominees was a good idea. And his call for Hillary Clinton to do the same makes a lot of sense.

Let me explain.

We tend to hold simultaneously two opposing views of the Supreme Court. First, we preserve the fantasy of judicial independence, aptly described by the journalist Anthony Lewis more than half a century ago as a vision of the court as “an extraordinarily powerful demigod sitting on a remote throne and letting loose constitutional thunderbolts whenever it sees a wrong crying for correction.”

Second, we demand that presidential candidates pledge in advance to choose justices who will vote the right way on issues we hold dear. Small surprise, then, that Trump has already sworn that his picks will uphold the Second Amendment, and Clinton has promised that hers will protect abortion rights and share her belief in the need to overturn the Citizens United decision.

We are wary of acknowledging the considerable tension between the first and second positions, but the tension is there. We want an independent judiciary that votes the way we want it to, and we reserve some of our nastiest invective for justices who don’t. We talk about the justices the same way we talk about candidates for elected office, as though nothing but ignorance or mendacity can explain their rejection of propositions we hold dear.

All of which leads to a question I have been asking for years: Why not just elect the members of the Supreme Court and be done with it?

Think about it. Presidential candidates crisscross the country promising to nominate justices who share “our values.” Yet somehow we seem afraid to test the proposition directly. We cling to the constitutional system in which only the president and the Senate have a role in the selection process. We choose not to remember that this system was developed to keep the people out.

When the Constitution was originally drafted, state legislators selected senators and determined how to pick the electors who voted for president. Of course a state was free to have the electors chosen by popular vote, but many preferred to keep the choice within the legislature. Only the House of Representatives was required to be elected by the people. And the House had no role to play in the nomination or confirmation of justices. In other words, the Founders preferred to keep the people out of the whole thing. That was the reason for vesting the confirmation power in the Senate alone -- to avoid popular influence.

Well, we did away with those more exclusive forms of election. Members of the Senate are elected directly. So are the electors who vote for the president. Given those enormous changes from the Founders’ model, there is no particular reason to keep the choice of Supreme Court justices in the president and the Senate.

If we really want a court that reflects “our” values -- whatever they are -- maybe we should stop clinging to this irrelevant bit of history. We should consider electing our justices directly, as many states do. Failing that, we should at least think about letting the House of Representatives into the game.

In the real world, of course, a constitutional amendment altering the means of selection would have about the same chance of passage as a Libertarian Party candidate does of winning the presidency. But we can still do the next best thing and ask the candidates to tell us not what sort of justices they will appoint but whom exactly they expect to appoint. True, we could no more hold a candidate to this than to any other campaign promise, but the list itself would give us a good deal of information.

Consider the way that Donald Trump’s list is already being dissected by liberals and conservatives alike. Maybe you think the judges on it would be great; maybe you think they would be dreadful. You might even think that Trump has done so much backing and filling since the list’s release that we don’t know for sure whether any of the names would make the final cut.

But that isn’t the point. Even if the 11 names on Trump's list are only exemplars of the sort of nominees he might choose, he has nevertheless provided a window into his view of the Supreme Court. Hillary Clinton should do us the same favor.

Don’t get me wrong. I am not suggesting that this course is the ideal way to select Supreme Court justices. I hate the way our politicians brag about how they will make sure that the court is peopled with minds impervious to reason because they're already made up. I would much rather live in a world in which a vacancy on our highest bench would lead to a careful, reflective search for the mightiest judicial intellect in the nation, and let the decisional chips fall where they may.

But nobody believes that anything like that will happen. We prefer giving lip service to judicial independence while presidential candidates mouth mystical promises to appoint hypothetical justices who will vote the way we want them to. If we really want justices whose minds are firmly made up, it's time to stop being coy about the whole thing. Let’s make aspirants to the Oval Office tell us exactly who they have in mind for the Supreme Court. Then the voters can decide.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net