Electing a Justice – A Historical Perspective

By Burg Simpson

Scales of Justice

February 17, 2016   Colorado Blog, Colorado Business / Commercial Litigation

Historical and Constitutional context is helpful in assessing the firestorm of controversy that Justice Scalia’s death has caused regarding the process for filling the vacancy in an election year. The framers of the Constitution wanted an independent judiciary, not one beholden to popular opinion.

In a recent article for The New York Review of Books, historian Gary Wills explains how the exclusive presidential appointment of the federal judiciary, coupled with Senate confirmation and lifelong terms insulates the judiciary from the buffeting winds of politics. He cautions against the idea being floated that the nomination and confirmation of the replacement for Justice Anthony Scalia should await the general election and the new president.

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