Here is the full transcript of Aziz Huq’s talk titled “Why Politicians Shouldn’t Appoint Judges” at TEDxChicago conference.
American legal scholar Aziz Huq’s talk, titled “Why Politicians Shouldn’t Appoint Judges,” delves into the complexities and inherent flaws within the current system of judicial appointments in the United States. He articulates concerns over how this system, deeply entwined with political processes, can undermine judicial independence and, consequently, democracy itself.
Huq outlines the historical context, explaining that the framers of the Constitution designed the judiciary as an unelected branch to act as a safeguard against the misuse of public power. However, he argues that the framers’ intentions have been compromised by the evolving landscape of partisan politics and increasing polarization. The talk highlights examples of how the Supreme Court has made decisions that weaken protections for free and fair elections, suggesting a drift from its intended apolitical stance.
Huq proposes exploring alternative methods for appointing judges that minimize political influence, drawing inspiration from systems used in other democracies. His persuasive argument calls for a significant reevaluation of the appointment process to preserve the judiciary’s role as a pillar of democracy and a protector of the rule of law.
Listen to the audio version here:
TRANSCRIPT:
The Peril to American Democracy
All of us who saw the shocking violence of January 6th at the U.S. Capitol knew then and there that American democracy was in clear peril. But the sheer spectacle of that moment can be misleading. It can lead us to lose sight of how the attack on the U.S. Capitol was just the culmination of a long, slow-moving campaign against our democracy, not just through violence, but also through law.
I want to untangle one thread in that campaign. My story is about how an institution that we look to as a guardian of the rule of law, the courts, can be turned into an instrument for corroding our democracy. At the beginning of our republic, the framers of the Constitution created a third, unelected branch to our national government called the federal courts.
Their aim in so doing was, importantly, to bolt in a safeguard against the misuse of public power by elected politicians. Despite that important and noble aspiration, those federal courts have never been able to fully escape the pull of partisan gravities. They’ve never been able to properly do their job. Now, it might seem there’s something paradoxical, even dangerous, about speaking of judges as a threat to democracy.
The Global Shift in Threats to Democracy
Yet, in the early 21st century, there has been a sea change in the nature of the threat to democracy around the world. Once, it was the military coup or the declaration of emergency that was used to etch out the edge to self-rule. Today, democracy’s enemies have found ways to turn the institutions and the laws that are necessary for self-rule against the project of democracy. From Venezuela to Hungary, from Turkey to Poland, democratic backsliding now happens through law, not against it, with the courts, not against them.
This is no less true in the United States. It’s not just a matter of throwing the occasional presidential election, as happened in Florida in 2000, as almost happened in Pennsylvania in 2020. The Supreme Court has undermined key safeguards for free and fair elections. The court has gutted the 1965 Voting Rights Act, and it has hollowed out our constitutional right to vote.
As a result, states have been able to enact a slew of voter suppression measures, leading many to lose the franchise. The justices have also consistently blocked campaign finance laws, which are aimed at preventing the capture of our representative bodies by wealthy elites. And at the same time that the wealthy have received a leg up, the court has consistently stood in the way of working class efforts to organize politically through labor unions. How could this be?
The Framers’ Vision and Modern Realities
In 1787, when the framers sat down to create a system of independent courts, they didn’t have a model to emulate. The British courts were firmly under the thumb of the king. Yes, there were colonial courts along the Atlantic seaboard, but these were weak and partial things. So the framers had to do something for the very first time in Western political history.
They had to figure out from scratch how to make judges independent. They chose to do that through one means, and decided not to use other possible ways. They chose to give judges, as individuals, a protection against retaliation after the fact, through salary and tenure protections. But they also chose to run the process of judicial appointment through the Senate and the presidency. That’s the same channel that’s used to make political appointments, like cabinet secretaries or ambassadors.
Now, the framers reasoned that political appointment posed no threat to judicial integrity for two reasons. First, they expected the president and the Senate to stand above the fray of factional battle. They thought that those national bodies would, like a sieve, strain out the impurities of naked self-interest.
Second, at the end of the 18th century, there were far fewer lawyers on the ground than there are today. And the framers saw this, and they reasoned that the president, when making appointments to the bench, simply would not be able to cherry-pick ideological allies. And on these assumptions, the design for judicial independence would work. In hindsight, we can see that those assumptions faltered.
The Evolution of Judicial Appointments
And they faltered precisely because of the framers’ success in building a new nation. So first, the framers built a new national politics with new national political parties. Not all presidents, as a result, would stand above the fray in the fashion of George Washington. Not every representative would put their country above their party, let alone the physical safety of their colleagues.
Second, the framers seeded a continent-wide economy, which led to a massive growth in the number of lawyers, for better or for worse.