That judges should be elected

The Framework:

This specific debate is focused on that judges should be elected.

To examine this concept we should agree and look at why judges are not elected currently within the United States.

Article III of the Constitution of the United States guarantees that every person accused of wrongdoing has the right to fair trial before

a competent judge and jury of one's peers.

Executive and Legislative branches are elected by the people while members of the judicial branch are appointed by the president

and confirmed by the senate. This is meant to allow a check and balance between the three major branches within the United States Government as detailed in the graphic below.

Federal judges currently can only be removed through impeachment by the House of Representatives and conviction in the Senate.

Judges and justices serve no fixed term and they serve until their death, retirement, or conviction by the Senate.

By design, this is meant to insulate them from the temporary passions of the public and meant to allow them to apply the law with only justice in mind, and not electoral or political concerns.

Based on this framework I move that in this debate I will show that while this logic made have been sound in theory when the United States was established, it has failed in practicality and has led to a country run by senior citizens completely out of touch with the 21st century and a highly political justice system filled with inconsistencies.

I elaborate on the following points:

1.

While judges can and do serve for life as a federal judge, many judges are still politically affiliated as shown in the chart below showing political leanings of supreme court justices over the years.

Appointment of supreme court justices, in particular, has become extremely political over the last several years with current justices aging and soon seeking retirement or passing away from illness. Particularly the current party in power either democrat or republican will seek in most cases a politically leaning justice to serve on the court rather than a  more neutral arbiter. This spits in the face of the very system our founding fathers and nation was built upon. Thus the system is broken in its current form.

2.

While senators and presidents can be held accountable for their actions via elections depending on their performance judges remain in place and are not held accountable by the people. This means that judges, in essence, do not represent the people and will not be held accountable for their actions by voters. While this allows judges to make hard decisions without repercussions it also means they are not held accountable for their actions. Because a president may be able to appoint several judges in his term and judge terms are unpredictable it means that a majority party in the white house can select bias judges to interpret laws in a biased manner the specifically supports one party. This is the exact opposite of what the courts are supposed to do, as they are to act as a check and balance not as an enabler to give a certain political party more power in Washington.

3.

Unlike federal judges, many states like my home state of Pennsylvania have elections for judges and appoint them to 5-10 year terms. This holds judges accountable while also helping eliminate conflicts of interests and encourages change by having a younger generation with new ideas and interpretations of the law that may be more in touch with the 21st century then-current judges. A good example of this can be seen in many court cases involving cybercrime. Due to the lack of technical expertise of many judges when conducting a case on cybercrime, it can make it very difficult to explain even simple technological concepts to judges on cybercrime. Having term limits of 5-10 years solves this problem and is essential to the evolution of our republic.

Opponent's Case

1. My opponent claims the system is broken because the appointment process is politicized, but thinks an election would help this. Firstly, simply bringing up the politicization of the justice system without justifying why elections would solve the issue doesn't prove anything. Without proof that elections would solve this politicization, there isn't any reason to weigh this for Pro. Secondly, I would argue it would make it worse. Scandals like Kavanaugh's sexual assault allegations would be used in a mud slinging contest between Justice candidates. Not only this, but hot button issues such as gun control and LGBTQ+ rights would be determined by public support and not legality. Justices, instead of chosen by representatives, would be directly chosen by the people, causing even less impartiality. Without any rationale that elections would solve politicization, we have to believe an election would make it worse.

2. Lack of accountability might sound like a bad thing, but is actually the Supreme Court's greatest tool. Let's look at Worcester v. Georgia. This landmark statute declared that Native Tribes were independent nations and gave them the ability to be able to govern themselves. ¹ This was unpopular at the time, which is partly why President Jackson ignored it, but shows something important. The more egalitarian decision was only possible because it was able to ignore public opinion. This ability to better implement the law than public opinion can be seen in Near v. Minnesota (stopping press censorship) ² , Brown v. Board of Education (ending segregation)³, Engel v. Vitale (ending prayer in school, leading to more inclusive education)⁴, Heart of Atlanta Motel v. US (helped ensure protections against corporate segregation)⁵, Loving v. Virginia (protecting interracial marriage)⁶, and Obergefell v. Hodges (protecting same sex marriage)⁷. While the Supreme Court has made some bad decisions, in the end, they usually are the strongest implement for social change to better ensure that the rights of Americans are protected. The only way they can pass cases like this is by being insulated from accountability. They actually can challenge racist policies, even if they have public support.

3. To answer the claim of newer generations, I propose a counter plan. Instead of instituting elections (elections that wouldn't be guaranteed to have term limits, not even ensuring that this would be solved) we should just put term limits on the approval of a Supreme Court Justice. You get appointed for a single ten year term. This ensures newer generations of Justices,  while still ensuring they won't be subject to the mob mentality of public support.

Summary

I have shown that politicization will only be made worse with elections, that accountability hurts the Supreme Court's ability to pass laws protecting the rights of citizens, and that their are better solutions to outdated viewpoints corrupting our Supreme Court. This negates the resolution because it shows that elections will disable the Supreme Court from doing their job as effectively while also solving nothing.

Sources

1.https://www.oyez.org/cases/1789-1850/31us515

2.https://www.oyez.org/cases/1900-1940/283us697

3.https://www.oyez.org/cases/1940-1955/347us483

4.https://www.oyez.org/cases/1961/468

5.https://www.oyez.org/cases/1964/515

6.https://www.oyez.org/cases/1966/395

7.https://www.oyez.org/cases/2014/14-556

I will now provide a series of counter-arguments

Counter Argument #1

While under an electoral system judges would still be somewhat political you and I can agree that there should be term limits regardless for federal judges. I would concede that I think 10 years is fair as that has worked at the state level and there is data to show that in other positions of power 10 years seems to be sufficient in helping to alleviate issues related to political and electoral pressure. Establishing elections helps eliminate certain political party bias when selecting federal judges, while elections would still be political inputs the power directly in the people's hands instead of specifically in the presidents or white house's hands. This creates an additional check and balance as now the people are the ones electing who will be the judges who interpret the laws rather than those indebted specifically to that president of that time period. This would also help give judges a platform on interpretation for laws, as the supreme court has an extreme amount of power for potentially changing how laws are enforced and interpreted by all lower courts. If we actually look at a map we can see that most states actually do run some kind of election for many of their court judges versus appointments, and even if they have appointments they often have term limits or retention elections as shown below.

Counter Argument #2.

This is a bit of a Causal Fallacy.

There is an assumption here that if we shield federal judges from accountability via election that we would not have landmark cases.

In fact, Pennsylvania which has one of the oldest state supreme courts in the country has a 10-year term for supreme court justices and has had many landmark cases. Such as the recent landmark case on protecting jobs for transgender workers.
There have been several other notable cases in PA supreme court such as:
Danson v. Casey
Pennsylvania Ass’n of Rural and Small Schools (PARSS) v. Ridge
William Penn School District v. Pennsylvania Department of Education

These are not the only cases in the US to have state landmark decisions.

Regarding argument #3.

We find common ground here as I agree that a 10-year term limit would be an excellent starting point, however, that does not entirely solve the problem and is only a step in the right direction. It may also be possible to have non-partisan elections as is seen in lower courts to remove some of the political tension we see in presidential and senate races.

In Sum

Elections work for lower courts and there is little reason to believe they cannot work for higher courts as well.

The logic behind protecting justices from accountability is flawed and arguments about landmark cases not being possible

in our country otherwise are speculation and do not show that supreme court justices could not uphold the law or protect people's rights. If anything due to elections supreme court justices may very well be moved to interpret laws in far more relevant contexts that are closer to solving the inequalities and issues that plague our current justice system.

Sources:
https://www.pennlive.com/news/2020/06/landmark-supreme-court-ruling-protecting-transgender-workers-is-especially-welcome-in-pa.html
https://edlawcenter.org/states/pennsylvania.html

http://www.pacourts.us/courts/supreme-court/court-opinions/Default.aspx
http://www.pacodeandbulletin.gov/

1. A. My opponent mischaracterizes the process of a Supreme Court nomination. The power isn't solely vested in the hands of the President, but also requires Legislative approval. This mischaracterization is to serve the interest of making it seem like one man gets to decide what happens, but it is a plurality that could force compromises in values.

B. How would elections alleviate political bias? We would have certain candidates campaigning to repeal Roe v. Wade while others would want to strengthen it as hard as it can, based on their party. The political bias would be just as strong, the only difference is now they have to deal with it directly in the Supreme Court, instead of it being cast down to the Legislative and Executive branches.

C. Justices aren't indebted to President's. A Justice faces no reelection and can make any ruling they choose with no fear of being replaced. Elections would ruin this dynamic. They would need to follow party platform to hope to get support in the next election, as well as follow special interests to hope for funding on the campaign. Elections lead to more politically indebted Justices than our current situation.

2. All of these cases are about educational funding and resulted in no state change. The closest to action that happened was William Penn School District v. Pennsylvania Department of Education, where the court decided to send it back down to the commonwealth court.¹ All of this inaction proves that the political risk of elections fail to create true action. Legalization of gay marriage and the end of segregation can only come from the insulation from political accountability. Inaction comes from politically charged and accountable courts.

3. He said my counterplan was in general a good idea, but said it wasn't going far enough. Very simply, a single term of ten years solves the problems of old ideas being in the court, which we agreed, but it doesn't trigger the issues of a politicized Supreme Court as well as inactive courts. This counterplan was simply to solve one of his problems without causing the others.

Conclusion

I have negated the resolution by proving that elections would lead to  indebted Supreme Court Justices to special interests and party politics, while also failing to be able to produce actual change. I have shown that every issue my opponent has brought up will only be made worse or can be solved through better solutions, and with that, vote Con!

Sources

1.https://edlawcenter.org/states/pennsylvania.html (Same source my opponent used in his last speech.)

Regardless of Con's claim the supreme court is already moving in a direction for longer terms.
The supreme court nomination process proceeds as follows:

Depending on the political party in power on the senate it is likely for instance if a republican leaning judge is selected that a republican senate will vote to nominate this candidate. Moving to an election system or even a non-partisan election system for supreme court candidates removes these issues entirely by putting the supreme court nomination directly into the people's hands.

The fact is the process is already political regardless if Con wants to admit that the process is political or not as shown in previous examples and charts. I would argue that justices that are heavily indoctrinated into a particular party stance will make them less neutral and lead to poor supreme court decisions in the future. Supreme Court nominations will of course indebted to some extent to the political party and president who put them into a certain place of power. It is true that they could still act against their party's best interest as it would not mean they would lose their supreme court seat, however consideration the process for them to get nominated in the first place, they are likely to have strong loyalties to the party they represent.

#2.
It is easy to say that state supreme courts do not have sweeping legislation when they are not the highest court in the land.
The truth of the matter is most lower courts are switching to elections or non-partisan elections for their judges and there is little evidence of the doom and gloom slippery slope argument put forward that will lead to "worse" supreme court decisions. This is especially true since "worse" can be subjective in this case.

#3.
In reality, right now consideration is being done to create term limits of 18 years for people who serve in the supreme court. That is as of this morning, which makes the rest of the argument on the lifetime appoints null and void as it appears soon lifetime appointments may very well be a thing of the past for supreme court justices.

In Sum
Con Does not show how elections would make supreme court decisions worse and uses conjecture and slippery slope fallacies that do not hold up in reality. Most lower courts in the United States are moving towards elections for judges whether partisan or non-partisan and it has not brought the doom and gloom represented in Con's argument. Further additional requirements on credentials can be put in place either through partisan or non-partisan elections to ensure supreme court justices are both more neutral and less corrupt during the election process. Pro is the clear winner in this debate and with that, I ask that you vote Pro!

1. A. Yes, if both the Senate and the President are the same party, then we will have a Justice of that party, but that would be most likely the majority vote that would happen anyway. If a party won the Presidency and Senate, then we would most likely see a same party  Justice anyways, and if they're separate parties, then we get moderate Justices. Either way, the party bias doesn't really change how a vote would affect it, even if it was non-partisan because a judge would use the word "conservative" or "liberal" which would be code for Republican or Democrat. Party politics would be just as prevalent in directly elected Justices.

B. A justice wouldn't feel indebted to a President or party because they face no re-election. Elections would change that because they would have to make promises to get campaign funds and support. My opponent says they would feel indebted to the party that put that in, but that's ideological similarity. A Republican Senate is going to put in a conservative justice because they are conservative, but there is actually a lack of feeling indebted. For example, Chief Justice John Roberts just recently ruled in favor of Title VII protections including protections for the LGBTQ+ community.¹ Why would an "indebted" conservative breakaway from his party's platform? They wouldn't, and this shows they aren't indebted.

2. My opponent is trying to conflate my point with the idea that I'm saying that State Supreme Courts can't create change, but that isn't what I'm saying at all. All of the examples my opponent gave, had no change. Pennsylvania did not change for better or for worse. All of these decisions either changed nothing or just sent it back to lower courts. My opponent is trying to hide this behind the fact it's a state court, but the truth is that political elections cause too much fear of political backlash to allow effective change to happen, and my opponent proves it by showing important State Supreme Court cases that change nothing. If a counterexample is needed, then we can use California, which has Gubernatorial State Justice appointments.² In the case of In re Sergio C., it was found that a drug addict mother who abandoned her children could not be the only evidence that resulted in the drug testing of the father (who the children were placed in custody with after the mother abandoned them).³ This is revolutionary because it helps break the stereotype of fathers having a higher burden to achieve their kids than their mother. 

3. Just because my counterplan is being considered in the real world doesn't mean it still doesn't apply to the debate. The purpose of the counterplan was to answer my opponent's claim that old ideas are persistent in the Supreme Court without having to trigger the political implications and ineffectiveness that elections cause. It still succeeded in answering that point.

Summary

I have successfully shown that the political bias caused by party politics and special interests would pervade the Supreme Court if we were to institute elections. On top of this, I have also shown that there is no political indebtedness in our current system, both logically and through empirical examples. I have also shown that elected courts are ineffective, and have provided a counter plan that solves part of the issues presented by Pro without making the others worse like elections would. With this, Vote Con!

Source

1.https://www.wbur.org/cognoscenti/2020/06/17/lgbtq-rights-supreme-court-john-roberts-robert-bordone

2.https://ballotpedia.org/Judicial_selection_in_the_states

3.https://law.justia.com/cases/california/court-of-appeal/4th/70/957.html

My Counter Arguments

#1.

Conservative and Liberal are not the same as representing the republican or democratic party.

That's a bit of a misnomer, people often elect whichever party meets the majority of their values or what

they believe would be in their best interest. There is various data points to actually support that stance as well.

One data point is not enough to make accurate conclusions, the data, in the long run, shows a clear bias in judges who are selected.

#2.

That does not change the fact that most lower courts are now being done by-election. Whether the court cases that are performed are of a "change" is not really the caser. Court cases are often built on other cases that are tried in court, this means that all cases matter as they help build precedent even in the smallest of cases. Saying the cases have no meaning is subjective, and I would argue many of those cases that did have a greater impact were eventually passed on to the supreme court which is why they didn't stay in the lower courts.

#3.
Real-world actions I believe are entirely relevant to the debate.

As real-world events can leave an entire debate meaningless.

In Sum:

There is no evidence that electing judges makes the court system anymore effective than appointing judges. The majority of the court system is now done via partisan and non-partisan elections. The evidence for the bias in the current system is clear and there is no evidence that supports adopting an election system for the supreme court would lead to "worse" decisions. Especially as "worse" is going to be completely subjective in this instance. Vote Pro!

Opponent's Case

B. My opponent dropped his whole "indebted" point, but, just to cover it, Supreme Court Justices would in no way be indebted to the party that put them in their spot because there is no re-election or re-appointment.

C. The only thing being contested by Pro is the effectiveness of non-partisan elections, and his only answer to Justices using coded language of conservative and liberal is a point that has "various data points". Firstly, I would like to say that my opponent calls it a misnomer that Republicans and Democrats are conservative and liberal, respectively, and this proves my point. It doesn't matter if that's how it is, but it matters how it's perceived at election time. If a conservative Justice is running against a liberal Justice, then, based on the misnomer, Republicans will flock to the former and Democrats the latter. Super PACs (the true source of the indebtedness that Justices would feel) would give money in the same sense and Justices would do what's necessary to get funds for election.

2. I gave an example of a court lower than the Supreme Court that created true change. This was a gubernatorial appointed court. Courts that create major social change go farther up the court system because lower courts that are elected simply aren't able to create the necessary social change Executively appointed courts at higher levels are, and I've given examples. If my opponent had at least explained how the inaction of his examples were important, then this would be different, but he simply claimed that they had "a greater impact" without telling us why. This doesn't prove anything. My example still outweighs his baseless claim that they're important.

3. I didn't say that real world actions are irrelevant, but that real world considerations are. My opponent said my counterplan was being considered, and that isn't relevant. I'm saying that instead of implementing elections for judges, we should simply put in a single (no re-appointment) ten year term for Justices, and that's it. If it's not already being done, then there isn't any real-world barrier to my counterplan. My opponent has failed to give any reason why it would be a bad idea, so my counterplan still stands as an answer to the point my opponent originally made about older Justices filling the Supreme Court without allowing new ideas in. 

Summary

As my opponent said "There is no evidence that electing judges makes the court system anymore effective than appointing judges," but I have consistently given evidence that electing judges will make courts much less effective. Courts will begin to be indebted to Super PACs and party politics so they can hope to win election and re-election while also failing to be able to create true social change through rulings. The only issue our current system has is old ideas, and my counterplan fixes that, so vote Pro!

Pro

Judges are using the terms conservative and liberal to not only attract party voters and funding, but also to attract Super PACs on either side. They make campaign promises on major social issues like gun control and abortion with no regard to the true legality or constitutionality of the issues. Upon taking their oath of office, they have to start working off this political debt by making decisions that benefit those handing out campaign funds to ensure they can re-obtain funds for re-election. Also, to not upset voter bases, they make the most ineffective, inactive decisions possible so they can keep strong voter bases. Our court system now bails out corporations that donate money and fails to protect marginalized peoples.

Con

Judges are still appointed, and not fearing any sort of election or change in appointment, are free to focus on the legality of any issue before them to the best of their ability. While doing this, they make landmark decisions that protect gay marriage, end segregation, and effect tons of social issues for the better going forward. Lastly, due to my counterplan, we replace Justices every decade to ensure that our Supreme Court reflects the values of our nation as of today and not decades past. Our court system is free to interpret the law in a way that is best for the American public and ensure that our Supreme Courts values are modern to keep creating the social change necessary.

Summary

As Con, I have shown that every issue brought up by Pro will only be made worse by elections or have provided counterplans to solve the issue without triggering bigger ones. With everything on the table, there is no possible way to vote besides Con.