It’s important to understand that this debate does not take place in a perfect world where Judges are absolutely A-political and there is only one way to interpret the constitution. Instead it takes place in the real world where judges have biases, appointments are political and where there are many valid ways to interpret the US constitution. On this side of the house I am going to show you that the Supreme court is a body which inherently makes subjective and political decisions and should therefore ultimately be accountable to the public.
So what is this debate about? It’s about the US Supreme court and whether or not the public should have the right to remove judges by referendum if they fall out of line with the views of the people.
So what is my model. Under my model the general public would have to get the signatures of 30% of voters in a majority of states to put the recall of a Supreme Court Justice on the ballot Paper at a presidential or Congressional election. I think that makes the burden significant enough that it will prevent frivolous referendums occurring every time a judge makes a decision someone doesn't like while not making it so high that it’s impossible if people really feel a Judge needs to be removed. We think that this process is in line with how the US currently conducts referendums and that logistically it would be very manageable and reasonable.
So that’s the how, now I'm going to explain the why and to do this I’m going to bring you three substantive arguments. I will argue the first two in my first speech and leave the third for my second.
2. That the current system gives disproportional power to certain presidents and disrupts the separation of power.
3. That by giving people a stake in the Supreme court we will increase peoples interests and involvement in constitutional issues.
So onto my first point. The Supreme Court Justices make political decisions as well as legal decisions in the same way politicians do so they should be accountable to the people. We think their decisions are political for a few reasons.
Firstly, we think that there is no correct way to read the constitution or interpret it so the way in which you do so is inherently a subjective and political decision. Some argue we should interpret it in the way the founding fathers originally meant it, others say it is a document which is meant to be read and understood in a modern and changing context. The problem is no way is the correct way, how you choose to read it is a subjective decision which has real world political ramifications.
For example in the recent case which legalized gay marriage some justices interpreted the document to mean the principle of equality should mean everyone should be able to marry whoever they want regardless of gender. This is a modern reading. Others argued that the founding fathers would have never meant for there to exist a right to marry someone of the same sex so voted against the change. The problem is both are valid interpretations and there is no reason why 9 unelected officials opinions should unilaterally decide such an important issues. Simply being a constitutional lawyer doesn't make your choice any more valid then anyone else’s. The people should be able to intervene when they believe a Judge is interpreting the constitution in a way which is out of line with their values.
Secondly,we think that politicians are not unbiased stoic individuals who makes decisions solely on points of law. We think they are political actors, appointed for their political beliefs which in turn influence how they make decisions. We don’t think it’s possible for these justices to separate their political beliefs from their responsibilities, we think their biases will always impact their decisions and that fact means they should be accountable for those biases. And even if we could find such people to sit on the bench who were totally apolitical and unbiased, the job forces them to make political decisions for the reasons I outlined above. It’s not that Judges are currently imposing their views on their decisions, it’s that the decisions coming before them require them to make political judgements. And this argument doesn't exist in a vacuum either. With the gay marriage case we saw the bench break along political lines. The 5 justices who principally believe in Gay Marriage voted that bans were unconstitutional. The four justices who principally disagree with same sex marriage voted that bans were constitutional. Every judge simply interpreted the constitution in a way that fitted their own world view, and there’s nothing to say that any of them were more correct than any of their colleagues.
So because we think the decisions they are making are subjective and political we think they should be accountable for those decisions. We think ultimately it is the American people who should decide how their document should be interpreted rather than 9 individuals.
My second point of substantive is that the current system hands too much power to certain presidents and in doing so violates the principle of the separation of powers. So why does it do this;
Firstly we think that granting the president the power to make lifetime appointments grants him along with the senate huge amounts of power for decades to come. We think increasingly Presidents are basing these decisions on political factors rather than altruistically picking the most qualified candidate. This trend is worrying because it means the President is effectively creating laws and appointing people who will interpret them in a way that he likes. That is a clear violation of the principle of the separation of powers which should see the three branches of government being as separate as possible.
The problem is made worse by the fact this power isn't even handled by presidents evenly, instead it is allocated essentially based on luck. This is because how many appointments a president makes is based on how many Justices die or retire while he is in office and how co-operative his senate happens to be at the time. This means the next President could Hypothetically pick three or four justices in two terms, all of whom shared his political and ideological beliefs about the world giving him massively disproportional power.
Political appointments to the bench are inevitable so the only way to redress this problem is to give someone other than the president control over who gets to interpret the constitution. By giving the people the power to be able to remove Supreme court justices we will reduce a president’s ability to have long term influence if his appointments were not line with community values. It will also means when presidents appoint Justices they will be forced to consider options who will not be challenged immediately and hence push them towards more moderate, more altruistic options.
It’s imperative that we start seeing Supreme Court Justices as political actors because that’s what they are. They are appointed for their political views and they use those views to make constitutional decisions. Just like any political actor there should be a way to hold them accountable for their political actions and public referendums are the best way to do just that.
Never prouder to propose.
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Welcome Judges to this exciting debate in which my side of the house will argue that we should NOT allow Supreme Court Justices to be removed by public referendum. I thank my opponent for her opening case and wish her best of luck for the rest of this debate!
Clarification on the frame of this debate:
This debate is based solely on the US Judicial system. The Supreme Court Justices, (there are nine of them) are appointed by the sitting President. This appointment must then be ratified by the Senate, thus ensuring that there are checks and balances in place to prevent one arm of power having too much influence.
The appointment of a Supreme Court Justice is a pretty big deal, as it's usually a job for life. They will normally outlast the president that appoints them by several years, if not decades.
My opponent's argument is that the American public should have a more direct say into the process of appointment of individuals to this position.
Her model basically calls for a referendum every two years to vote confidence in the person that the Executive and Legislative arms of Government have both decided is the right person for the job. It's like having YOUR customers decide who you can and can't employ to a position within your company.
We think this model is well-intentioned, but ultimately unworkable.
I'll open my side of this debate with some reasons why we think this, before briefly addressing some of my opponent's points.
1. Federal Referendums are unconstitutional
My opponent's model calls for a referendum to be called at a Federal level. The American constitution specifically does not allow this. The Constitution seeks to protect individual state's rights at all times. To be clear, this is not an election. This referendum would be a vote to overturn a federal decision. In fact before my opponent's model could be implemented, half the country would need to rewrite their state legislature to even allow this to happen.
Of the 50 US States, only 25 of them currently allow referendums to take place in their states.
2. Referendums are expensive
Recently Scotland held a nationwide referendum to decide whether they should become independent. The cost of this was conservatively placed at $18,440,240 USD, with other estimates climbing to in excess of $22,695,680USD. This was for a population of just over 5 million people. The USA has almost 320 million people.
To be clear, my opponent is advocating that this referendum be run EVERY election cycle, regardless of whether a new Justice has been appointed or not.
3. The American public is not qualified
How many Supreme Court Justices can YOU name?
In several recent studies, the average American has been shown to be less and less informed about the workings of their government. In this 2014 survey, 35% of Americans could not name a SINGLE BRANCH OF GOVERNMENT. There are only three!
We can't trust the American public to intelligently vote on a Supreme Court Justice's ability when most of them can't even tell us what they do!
You know what we CAN do though? Trust them to vote for leaders who WILL have the knowledge required to make a decision that best represents their constituents.
4. The American public doesn't care
My opponent's model requires that 30% of eligible voters need to indicate they'd like to recall an appointed Justice. To put this into perspective, in the last presidential election of 2012, approximately 60% of all eligible voters took the time to register their preferred leader of the whole country.
Federal elections for Congress take place every 2 years. In a Presidential election year, the voter turn out is around 55%. In the off year this dips to a fairly consistant 38%. In 2014, it was down at a fraction over 36%.
The American public has consistently shown itself to simply not be interested in who is placed into government.
This means that we will be spending a LOT of money on something un-constitutional, to ask an opinion from people who don't know, and don't care.
5. This model undermines elected Authority
My opponent speaks a lot about the political bias that these appointed officials hold. What we need to accept though is that these political biases are held by the people who elected the person who appointed these people! And proportionally, by the people who ratified his appointment!
The US government, and ANY government for that matter, works because the system allows we the people to select people who represent us. We entrust them with the power to make decisions with the understanding that they are better informed and better qualified than us to make those decisions.
My opponent's model is nothing more than us saying to the leaders WE appointed, "we don't trust your ability to make a good decision!"
That's inefficient. If the US feels that strongly, they should push for a Total Democracy model, like Switzerland uses.
To quickly address my opponent's points thus far:
1. That the US supreme court makes political decisions and hence why it should be accountable to the people.
My opponent breaks this point into two parts, both of which essentially say the same thing. The elected Justices are just people and as such bring their own personal political bias to the job. Leaving aside the rather pessimistic view that it's impossible for a person to even try to be objective, despite the fact that the role specifically calls for that - how does she think that the people will be any less subjective when it comes to deciding whether an appointed Justice should be in the position or not?
If I'm a proud democrat, would I not automatically vote to recall all republican officials given the opportunity?
Of course I would!
She also conveniently ignores the fact that the Executive needs to get the Legislative to sign off on these appointments. For this reason, the Executive can't afford to get a Justice that is TOO far left or right, or else they'll never get accepted. Instead the majority of appointments end up being fairly moderate.
2. That the current system gives disproportional power to certain presidents and disrupts the separation of power.
In this point my opponent now casts dispersions on the President to be able to objectively appoint the best Justice for the job.
Now some of this has been addressed by the previous point - the Executive arm can only appoint, the Legislative arm or government needs to sign off on these appointments or else they don't happen. This is exactly that separation of power she was referring to. Both arms of government must agree before they can move forward. The system has been designed this way to prevent exactly the kind of scenario my opponent refers to.
Secondly, my opponent's suggested model does NOT solve this point!
In her model, the President can still appoint whoever they want to the position. The Public can only over turn it after the fact. And then, only if 30% of them even ask for that action to be put to a vote. Which they won't, because, as the evidence suggests, they don't care.
Surely her model would be far more efficient if the public did the appointing in the first place?
Thank you for your consideration, this motion is NEGATED.
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The first thing my opponent attempts to do is argue that my model is unconstitutional, that only half the states have referendum provisions and that my model will simply never happen because of this fact. Here my opponent has simply misunderstood the purpose not only of this debate, but of all debating. In debates like this the onus of proof is on the affirmative to prove that a motion SHOULD occur, not that it WILL. In this debate I am not trying to prove that my model is currently constitutional or that it will happen, I’m trying to prove that it SHOULD be constitutional and that it SHOULD happen.
The second way my opponent tried to show my model was impractical was by saying that referendums are expensive and therefore we shouldn't have them. I have a few responses:
Firstly: The reason that the Scottish independence referendum was so expensive was because the Scottish government both initiated and funded the campaign. Because of this the financial burden was entirely on them to both educate the public about the vote and fund both sides. Under my model the financial burden would be entirely on the petitioners, not the tax payers. This is how many serious issues such as the legalization of gay marriage and the decriminalization of marijuana have been decided in the past.
Thirdly part of his argument was that these referendums would occur every two years and that was one of the reasons the cost would be too high. Firstly on this point he really just asserted this, he didn't give us any analysis as to why he thought they would be held so often. Remember I said petitioners would need to get 30% of the signatures of voters from the previous election cycle in 26 states! That is no easy feat. If he wants us to believe that will occur regularly he needs to tell us why it will.
Unfortunately for my opponent, his own analysis hurts him on this point. Remember when he was telling you just how expensive referendums campaigns are? Well doesn't he think that that expense which I explained above falls solely on the petitioners will be a fairly major deterrent against people running these referendums every political cycle. What's more in cross examination he even argued that the burden was so high that he thought a referendum would never be actionable. He can't have it both ways.
Should we trust the American people to recall Supreme Court Justices?
He correctly identifies the problem in this point but he fails to recognize that my model is the solution. You see, rather than excluding the American people entirely from the judicial nomination process because of their apathy and lack of understanding we should seek to address their root causes. The reason the American people can name the President and their Governor but not the Supreme Court Justices is because they get to vote for the former two but have no political capital in judicial nominations.
Apathy about the judicial process is dangerous under either model. The harms he wanted to talk about apply equally when you have uninformed people electing a president when they don’t fully understand the extent of his powers when it comes to judicial nominations. If they don’t know the type of justices the president might appoint they can’t take that into account when voting. This means you can get a real disconnect between Presidential nominations and the type of nominations his electors would have wanted him to make. My model helps address the problem of apathy, his does not.
Even if, however we grant that his numbers are correct and that a majority of Americans will always be disengaged with the political process, his argument is still a non-sequitor. It doesn't necessarily follow that because some Americans don't care about politics that we should disenfranchise the citizens that do. I'm arguing that Americans should be able to engage with the judicial nomination process, whether they do or not is entirely up to them.
Are the checks on the Supreme Court’s power are already sufficient.
He started this point by saying we should simply trust the President who we elected to make important decisions for us and that my model says we don’t trust the people we elected to make good appointments. My model doesn't say that. What it does say is that we don’t trust the President to ALWAYS make good appointments, therefore we think it’s appropriate that we have the ability to step in when a really bad appointment is made. We think this is especially important when it comes to Supreme Court Justice decisions because they are independent political actors who can’t otherwise be held accountable for their actions. If a president makes a law we don’t like we can vote him out and put in someone to overturn that law, that’s not the case if the President makes a bad appointment to the bench. That judge is there for life regardless of what we do. That’s why this extra check on Judicial power is necessary.
He then argued that the legislative approval is needed. That’s half true. You need a majority in the senate to confirm appointments but this isn’t always a good check on the President’s power because if the President’s party control the senate then it acts as little more than a rubber stamp on the Presidents appointments. This could happen in the next term if a Republican wins the White-house and they continue to control the senate. Then you would have one President making possibly three appointments to the Supreme Court unilaterally with no check on who he appoints. That is a tremendously dangerous possibility. My model addresses it, my opponents does not.
He then tried to say that my model wouldn't fix the above problem because the power goes back to the president again anyway so he could hypothetically appoint the same person again or someone with similar views. I think this wouldn't occur for a few reasons. Firstly I think the president is likely to pick someone more moderate because they won’t want another appointment being recalled. Secondly we think that often when these recalls happen you will have a different President to the one who made the nomination or at least a more hostile senate which will mean their pick will likely be entirely different.
And then finally on this point he said that the Supreme Court can be unbiased or at least no more unbiased then the general population. In my first speech I offered you a lot of analysis about why judicial appointments and judicial decisions will inherently be effected by bias and why this is unavoidable under the status quo. The only response we got was that this view was ‘pessimistic’. It may be pessimistic but its accurate. He then went on to say that the general population would be bias as well. That’s 100% correct, but that’s why you have a vote, so everyone’s bias are taken into account rather than having the biases of 9 people unilaterally effecting important yet subjective political decisions.
This motion stands.
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Once again I thank my opponent for their round.
In this debate my opponent has made much of the subjectivity involved in a Supreme Court Justice. He's correct that during CX, I said that the constitution was often interpreted subjectively. I also said that it was written subjectively. I'm not sure I'd call this a concession as such, since I never tried to shy away from this fact, but there you go.
My opponent also "concedes" that the public of America are biased to their own world view. In other words, they are subjective as well.
He specifically said that it is impossible for a person, Supreme Court Justice or Average American Punter to be politically objective.
I want to be very clear about this, because if the harm my opponent is proposing is subjectivity, we need to be very clear that there is no model that solves this.
We both agree on this point.
The only question around Subjectivity in this debate, is whether we can trust the Supreme Curt Justices to set aside their own political bias to a reasonable level when interpreting the Constitution of the United States.
I say we can. It's not easy to become a Supreme Court Justice. Or any Court Justice for that matter. You hold one of the most important and powerful positions in the country. You're appointed by one branch of the Government, and ratified by the other. Being checked by two out of the three branches of government in this way is something that doesn't occur for Senators, Governors or Members of Congress - it doesn't even occur for the President!
Appointments to this branch of government are made very carefully, and for good reason... Which brings us to:
Why the unlimited term?
It would seem pretty obvious that the founding fathers had separation of power in mind while setting up and refining the American Governmental system. Members of the Legislative branch get a term of six years. The Executive branch gets a term of only 4 years, with some extra restrictions on how many consecutive terms they can serve!
So why would these same people decide that the Judicial branch should be appointed without direct input from the people, and that they could hold this position for a lifetime?
The lifetime term is actually pretty clear. Whoever the Executive and the Legislative elect into this position is there for a lifetime. That means they now answer to nobody. The decisions they make can not be influenced by wanting to get a second term, or in the Legislative's case, a third or fourth term. This is crucial.
To see why, one only has to look at the state of the other two branches of government! When I know that my paycheck is signed by the people, I will do and say whatever it takes to keep them happy. In the case of the Judicial branch, this CAN'T happen. Their specific job is to mind the direction of the USA. Any direction the other two branches want to take the country needs to be checked against the founding document first. This ensures that course corrections will be minor ones, or major ones that happen in increments.
But the power! What if they get it wrong?
But what happens when a bad egg gets in there?
Firstly, this almost never happens. In the entire history of the USA, only one Supreme Court Justice has ever come close to being removed, and he was eventually found NOT GUILTY on all charges of allowing his personal bias to unfairly influence his decisions.
But there IS a process already for removing a Supreme Court Justice. Currently this process is usually instigated by the Legislative branch of government.
This particular branch of government can already be petitioned by the general populace, so the first part of my opponent's model is not really needed.
But crucially, since allowing your political bias to unduly affect your Court Decisions can be a crime, the ultimate decision on whether a Supreme Court Justices has been corrupt, lies with the Judicial branch.
The only reason for a Supreme Court Justice to be removed is if they are failing to do their job.
Whether that is happening or not, is NOT a decision for the general public, it's a decision for the people who are trained to decide this.
Firstly, I think we can ALL agree that PRO's model will be a pointless waste of time implementing. If there is ever a time that 50% of the voting public agree on something AND take the time to register that agreement - not to mention the fact that a portion of these people feel so strongly about it that they will stump up the cash and resources it takes to coordinate the initial call for such an effort; the elected representatives of these people are going to be aware of this, and would be calling for the impeachment procedure to begin already.
Secondly, allowing the carefully thought out separation of power to shift in such a way that the unwashed masses could overturn a decision made by their own elected officials would go directly against the very document the American public would be accusing these Justices of misinterpreting!
Are we really saying that an Oil Driller in Texas is better qualified to interpret the constitution than a Supreme Court Justice?!
You know what's a good model?
Setting up a special branch of government that is responsible for NOTHING ELSE but making sure that our elected officials make decisions in line with our founding document.
To keep this branch honest, let's make it hard to get appointed to the position of power, and let's make it so that once they're in power, they are no longer controlled by either of the other two branches. This leaves then free to make their own decisions, irrespective of who they annoy.
To make sure we get the right people in there, let's make that a decision for the people WE placed in leadership. Ultimately, they, and the party they represent, will be accountable to us for the decisions they make.
It will be in their best interests to appoint moderate people to the position, in case the party needs to drift one way or the other, in order to represent the current vibe of the people.
PRO's proposition is impractical, unlikely to ever come to fruition, and tries to solve a problem which already has a solution. A carefully thought out solution, designed to create a form of government which best upholds the original intentions of the constitution.
The resolution is negated y'all!
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Oh dear, it appears my opponent has declined to submit a rebuttal to any of my last round arguments.
I'll use this last round to sum up my case and leave this to the Judges.
The USA's government is made up of three branches.
The Legislative which is made up of 100 Senators and 435 members of the House of Representatives. The Senators serve a 6 year term, while the Representatives serve a 2 year term. Both of these groups are elected in a general election which takes place every two years.
The Legislative Branch of Government is responsible for making laws.
The Executive is made up of the President, and their Cabinet - as well as the Vice President and any auxiliary staff.
The Cabinet is appointed by the President and ratified by the Senate. The President is elected by the people and serves a 4 year term.
The Executive Branch of Government is responsible for carrying out the laws.
The Judicial Branch of government is made up 9 Supreme Court Justices. These are appointed by the President and ratified by the Senate.
They serve a lifetime term, unless they are impeached or voluntarily step down.
The Judicial Branch of Government is responsible for evaluating the laws.
They have perhaps the most important job to do, because they decide whether a specific law is constitutional or not. In a sense they are responsible for making sure that the modern day USA still adheres to the original vision as conceptualised by the founding fathers.
The resolution my opponent needs to convince us of today is that the 9 Supreme Court Justices should be able to be removed by popular vote.
As we've already established, these Justices can already be removed by a majority vote of the Senate, (assuming they are found guilty of the actual accusation brought against them) however my opponent would claim that this process is not robust enough. His House argues that this decision should not be left to the elected and appointed officials of the relevant branches of government, but rather that it be left to the general citizens of the USA.
We have opposed this model on several grounds.
1. It is Unconstitutional
The Founding Fathers knew what they were doing when they set this system up. They model of Government they arrived at has a very clear separation of power. It prevents any one branch of Government from holding too much power. It also limits the amount of power given to the actual citizens of the USA.
The Model my opponent proposes completely upsets this delicate balance.
2. It is Expensive/Impractical/Uncalled for
The model he proposes is awkward and clunky. It relies heavily on private funding and he's provided no evidence that there is any call from the people for this model. In short, he hasn't proven that there is an actual problem to fix. The closest he's come is to hint that given a very specific set of criteria, there MAY be a theoretical problem some day. Maybe.
He never contested my hard numbers which showed that overwhelmingly, the American public does not actually care that much about the various representatives that they currently have a say in electing. My concern is handing the people who have shown themselves to be the least engaged in the political process, the most power.
There has been NO evidence to suggest that his model would EVER get the numbers it needs to be implemented, and PLENTY of evidence to show that it wouldn't.
3. It subverts the elected Authority
The people who currently decide who holds these important positions of power, both the President who appoints and the Senate who ratifies, are elected by the people. In short, the people of the USA have declared that these officials are capable of making the best decision on their behalf. They have charged these men and women with the responsibility of choosing Justices that will be fair and, as much as it is humanly possible, unbiased in their interpretation of the Constitution.
My opponent's model only seeks to undermine this. If the danger of the wrong person being appointed to the position were so bad, why would we not simply change it so that the Justices were elected by the people directly in the same way that the other members of the Legislative and Executive Branches are?
I asked this question in round one, and in three rounds my opponent has still not been able to give an answer.
4. This position NEEDS to be a lifetime term.
After establishing that what my opponent is proposing we do is pointless, inefficient and plain wrong, in Round two I explained that the very spirit of what he is trying to do is completely counter-intuitive.
It is CRUCIAL that the Supreme Justices not have to pander to any one group. Not the President who appointed them, not the Senate who approved the appointment, and not even the people they ultimately serve.
The moment we make their appointment anything less than lifetime is the moment we force them to keep one eye on how the decisions they make will affect their personal livelihood.
In short we are saying, "Tell us honestly and without bias whether this law is constitutional or not, but if you give us the answer we don't want to hear - you're fired!"
It was after this last point was made that my opponent fell silent.
For two weeks.
PRO's only reasoning behind the upheaval he was proposing was that, given an exact set of circumstances, it might be theoretically possible for a small percentage of the 9 appointed Justices to end up having a strong political bias.
This reasoning fails on several grounds, all of which can be linked to the above points.
My opponent admits that EVERYONE has bias to some degree, so there is NO model that solves for bias in this position.
The existing model results overwhelmingly in the elected Justices being moderate in nature as an average.
And as my last point proves, replacing the existing model with my opponent's suggestion actually INCREASES the amount of bias these men and women would bring to the role.
Judges, I thank you for the time you have devoted to reading this debate.
I trust that you'll find this summation to be accurate. My opponent has clearly failed to meet his burden of proof, he's not even given us a strong argument for WHY we should change the status quo in the first place!
In the end, rather than make a final reply, we have had two weeks of silence, meaning all my points stand unrebutted.
This resolution has been thoroughly negated. Please vote CON.
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Aaaannnnddd... we're done.
Vote CON y'all!
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