Letting voters elect justices is novel idea

Richard Davis began working 12 years ago on "Electing Justice," which he describes as "an intentionally provocative book" about the U.S. Supreme Court nominating process. But he was canny enough to time its publication for a year when the high court would be in the news.

It just so happened that Sandra Day O'Connor, 75, recently announced her decision to retire. (And on Tuesday, President Bush announced his nomination of federal appellate Judge John G. Roberts to take her place.)

Davis, a political science professor at Brigham Young University, calculated that if a justice did not retire in 2001, one would in 2005. "They don't want to go in a presidential election year," Davis said by phone from his Provo home. "They like to go when a president from their party is in office — to enable the appointment of a justice whose views are closer to theirs.

"It's also common to go early in a presidential term, to avoid lame-duck status, making it harder for a president to get his choice. I think the Bush v. Gore case in 2000 (in which the Supreme Court played the deciding role in calling the presidential election for Bush) was too hot to handle for the court. It led to accusations that the court, in fact, selected the president. O'Connor could see there needed to be a cooling-off period."

Now that O'Connor has announced her retirement, Davis thinks Chief Justice William Rehnquist will put off his retirement for awhile, providing his health holds up. "It's difficult for the court to deal with two vacancies at the same time."

What makes "Electing Justice" provocative is Davis' thesis that the time has come for the people to elect Supreme Court justices, partly because the process of selecting a justice has become much more public. This started in earnest in the 1960s, as various interest groups began to lobby for candidates, and as the U.S. Senate's sometimes highly charged hearings began to be televised.

"It used to be that the process was very short," said Davis. "The president and the Senate made the decision and it was over. We can't get that back. I'm not sure we should get it back. In 1939, Franklin D. Roosevelt nominated Felix Frankfurter to the court, and the Senate confirmed him only 12 days later."

Today it is expected the nomination process will be lengthy, even if the nominee is not controversial. O'Connor was confirmed 107 days after her nomination, the same number of days required to confirm Clarence Thomas.

The system has become, in Davis' opinion, "awkward," calling out for reform. Because the public is already playing a major role in the process, Davis believes it is time to "formalize" that role.