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There Has Got to Be a Better Way

There has got to be a better way of selecting our federal judges and justices than the political theater we presently use. The present poster-child is the nomination of Judge Brett Kavanaugh for appointment to the United States Supreme Court. By the time this is published, I fully expect that he will be approved by the U.S. Senate notwithstanding several claims from women that he sexually abused them earlier in his life. Notwithstanding, he will be appointed for no other reason than it’s good for the Trump party’s political agenda.

While it would require amending the Constitution, this whole selection process should be scrapped.

Here’s why.

First and foremost when any litigant goes to court all he, she or it should rightfully expect is to have the case adjudicated by trial and appellate judges that are fair, independent, and impartial. No person should have to have her day in court determined on anything but the facts of the case and the applicable law—not on the basis of partisan ideology, on the demands of powerful special interests, on the dictates of religious beliefs or on the spending of the deep pockets who presently own the executive and congressional branches of the government.

No person should be forced to appear in a court where the wheels of justice have been liberally greased with money and partisan obligation. But that’s the way the process works now in our post-Citizens United, money=speech, ultra-partisan world.

Second, judges and justices should be selected solely on the basis of being qualified to serve by reason of the person’s character, experience, and intellectual rigor. Jurists must be committed solely to our Constitution, our laws, and our courts; they must be fair to all, independent of partisan obligation, and impartial until all the facts are in and the law decided. They must owe no other allegiances. The present system does not facilitate those selecting jurists of that sort. Indeed it encourages the exact opposite.

Third, one prong of the solution is to get the executive and congressional branches out of the process altogether. These two branches are the political branches and judicial selection should not be grounded in politics–because that process produces politicians, not jurists. Few of us want to have our day in court adjudicated by somebody else’s political hack—unless, of course, you’re the litigant whose fix is in.

Our government is formed of three co-equal branches. That means each branch has its own duties, powers, and responsibilities—the overriding purpose of which is to enable each branch to check and balance the other. The executive and members of the congressional branch are not chosen by judges. So, it skews the entire checks and balances scheme when judges are selected by the other two branches.

Fourth, judges and justices should be selected solely on the basis of character, experience, and intellectual rigor. There no reason why jurists should not be chosen by a committee composed of various stakeholders in the legal and judicial professions and in civil and criminal justice systems. The specifics of how that would work is beyond the scope of this piece, but whatever the system, it must be as apolitical and as representative has humanly possible and grounded in the three criteria referred to above. There should be term limits.

There are ways to do this. We the People owe it to ourselves and future generations to start now.


If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

About the author

James C. Nelson

James C. Nelson (Ret) was an associate justice of the Montana Supreme Court. He took office in May of 1993, following an appointment by then-governor Marc Racicot, and he retired on December 31, 2012.

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