Berks Barrister Summer 2018 - 33

w w w.BERKSBAR.org

Hamilton goes on to argue that the "intrinsic merit of the
candidate will be too often out of sight" if the selection were to be
made by "an assembly of men," in which case "we must expect to
see a full display of all the private and party likings and dislikes,
partial items and antipathies, attachments and animosities, which
are felt by those who compose the assembly."
Hamilton, it would appear, places the greatest emphasis on a
nominee's qualifications in the appointment process, and seems
to say that one man, the President, is best suited to render an
impartial choice in this regard, and one not influenced by the
typical taints that would result if an "assembly" were primarily
responsible for the selection.
I would suggest that the process of nominating and
confirming a nominee to the Court, as it has evolved, and as it
exists today, stands in conflict to Hamilton's reasoning. Today,
we face a process wherein nearly every, if not every, candidate
who is nominated to be a justice, at least as far as educational
background and legal experience are concerned, is qualified
for the seat, but one in which it is also true that the legal and
political philosophies and predilections hold far more sway than
do qualifications. Would this situation have been to Hamilton's
liking? Was this the scenario Hamilton envisaged?
A further disconnect, if you will, with "The Federalist Papers"
may be found, I would submit, in The Federalist No. 78. In
arguing in favor of the permanency of judicial appointment,
Hamilton writes:
...the judiciary is beyond comparison the weakest of the
three departments of power; that it can never attack with success
either of the other two; and that all possible care is requisite to
enable it to defend itself against their attacks. It equally proves,
that though individual oppression may now and then proceed
from the courts of justice, the general liberty of the people can
never be endangered from that quarter: I mean so long as the
judiciary remains truly distinct from both the legislative and
executive...that as from the natural feebleness of the judiciary, it is
in continual jeopardy of being overpowered, awed or influenced
by its coordinate branches...
I would suggest that Hamilton's characterizing of the judicial
branch as the least important of the three is bolstered by the
language of Article II, Section 2, cited above, wherein the
appointment of members of the Supreme Court is but one of an
assortment of other appointments specified. More importantly,
however, I would suggest that it is certainly not accurate today
to state that the general liberty of the people "can never be
endangered" by the courts of justice, as Hamilton asserts in No.
78, or that the judicial branch "can never attack with success"
either of the other two branches, as Hamilton also asserts.
Is it not commonplace to say that the judicial branch has
become a co-equal branch insofar as its power and influence are
concerned, and that, in many instances, the powers of the courts,
and particularly of the Supreme Court, exceed those of the other
two branches? Again, should not the people have a more-direct
role in selecting the members of a Court whose powers and

influence far exceed any that were contemplated by the Framers?
I must confess that I am not very supportive of judicial
elections, as they necessarily add a political component to a
process that should be devoid of political consideration to as
great an extent as possible. It must be observed, however, that
the current process, at the very least, has a definite political
component. I am also not necessarily in favor of altering a
constitutional process that has been in place, with some relatively
minor adjustments as to the number of justices on the Court,
since the 18th century.
I am, however, very much in favor of protecting and
expanding the democratic process, and providing for the election
of justices to the Supreme Court might serve this purpose. In
this regard, it is highly relevant to recall that the Framers of the
Constitution did not provide for the direct election by the people
of senators, as the Constitution was originally ratified. This
indirect method of election would appear to be another indication
of the Framers' predilection against popular voting, and is further
support for my posing the question under discussion in this
article.
Furthermore, while I would acknowledge that the mechanism
of my proposed change requires great study and refinement, and
that any thought of amending the Constitution is one not to be
taken lightly, either as to intent or implementation, I submit that
allowing for the election of justices would not be too cumbersome
or onerous, or impracticable by the people at large, as thought
by Hamilton. Ours is a country of tremendous capability and of
greatness.
I feel that the question raised in this article is worthy of
being addressed and discussed, but it should not be addressed or
discussed on political grounds. At the very least, consideration of
this question and the surrounding issues it raises would provide
a wonderful opportunity to consider and debate a constitutional
provision that deeply affects us all.
In that regard, perhaps it is time to see a reality that has,
perhaps, gone unnoticed far too long.
John J. Duffy, III, Esquire, is a
Pennsylvania lawyer and a good friend
of the BCBA Executive Director, who
considers Mr. Duffy a Renaissance
person whose multiple interests
include United States Constitutional
Law history. Any opinions expressed
in this article are those of the author
and not of the Berks County Bar
Association.

Summer 2018 | 33
http://www.berksbar.org
Berks Barrister Summer 2018

Table of Contents for the Digital Edition of Berks Barrister Summer 2018
