A conservative news and views blog.

Location: St. Louis, Missouri, United States

Tuesday, September 13, 2005

Courting Judicial Change

Jeff Jacoby was quoted by the Federalist arguing for term-limiting the Judiciary. I wholeheartedly agree, and make my case below.

Mr. Jacoby writes:

"The Constitution grants life tenure to federal judges, and [Chief Justice William] Rehnquist was under no legal obligation to step down because of illness;not even an incurable cancer that was visibly robbing him of his strength. But there is growing support, both public and academic, for abolishing life tenure on the high court, and cases like Rehnquist's are part of the reason why. As life expectancy has grown, and as the Supreme Court has become ever more powerful, justices are staying in office much longer than they used to... There are other problems with life tenure: Little or no democratic accountability. Bitter confirmation battles, since the stakes;a justice who may hold office for 25 or more years;are so high. Falling productivity, with today's geriatric court generating only half as many full opinions as the court did two or three decades ago (even though the justices hire twice as many law clerks). Remoteness from the workings of the real world, including the judicial system over which they preside... An AP poll last year found 60 percent support for ending lifetime tenure;with people older than 65 most likely to favor mandatory retirement. Past attempts to limit Supreme Court terms have fizzled, but in a post-Rehnquist era, the winds may shift.``;Jeff Jacoby

The principle argument for life tenure of judges and justices is that 1. the Judiciary is the weakest branch of government, and term-limiting judges would unduly diminish it`s power and 2.Judges should be shielded from political pressures to make their decisions based on what the law says, not what popular fashion dictates. Unfortunately, neither of these arguments have any validity at the current time.

Alexander Hamilton makes the case in Federalist 78 that the Judicial Branch is the weakest of the three branches of government. He points out that the Judiciary has no enforcement powers, and has no means of raising money on it`s own (or it didn`t before courts began socking people with fines and fees). According to Hamilton, the Judiciary is at the mercy of the other branches of government. This was undoubtedly what the Founders had intended, and the Founders almost certainly thought that the Executive Branch would refuse to enforce Judicial fiats which overstepped the Court`s authority, while Congress would use the power of the purse or impeachment to wither an out-of-control Court. Remember, the Supreme Court was not explicitly granted the right to decide the Constitutionality of laws; they granted that right to themselves through Marbury v. Madison. The Supreme Court has been expanding it`s own power ever since-and the other branches have allowed it get away with this. It has never worked the way the Founders thought it would. (Actually, many other aspects of government didn`t turn out the way the Founders thought; they believed that there would be no political parties and that the Presidency would be decided in Congress, they believed that amendments to the Constitution would enter via conventions rather than the more time consuming method of state ratification, etc.)

The early United States government was very different from the Leviathan monstrosity we know and love today; with few people, little money, and a huge frontier it was impossible for the Federal Government to micromanage as it does now. Until the Civil War the state governments were the principle authority over matters within their territories (and this was the primary reason for the Civil War-not slavery as we have been led to believe.) The Supreme Court was limited by the more Confederated system we had in place. Still, the Court continued to usurp power, and Congress and the Presidency were both willing to allow this because of the lifetime appointments of the Justices! The Judiciary was inoculated from the wrath of the voting public, so the other branches of government have been willing to allow the Courts greater authority over matters. The Founders hadn`t realized this would happen when they devised the architecture of the government; those who have to face the voters will ceed authority to those who don`t.

We see this concept at work in institutions outside of the courts; consider the myriad bureaucracies within government. Bureaucrats are career people in governmental entities which can issue regulations and guidelines which have the force of law, and yet they do not answer directly to the populace. Think of how many people are angry at the price of gasoline, for example; that price is driven by environmental standards set by the EPA, and Congress and the President can claim that they have no blame for high prices because THE AGENCY has issued the orders! They themselves are not PERSONALLY responsible for giving the orders which raised gas prices, so they can cover their gluteus maximi! Elected officials hide behind bureaucratic skirts-and behind Judicial robes. Our elected servants are content with this watering down of their duties and authority; they can transfer blame to an ephemeral agency or tyrannical Court. As a result, Congress and the President have been more than happy to surrender their authority, even when this surrender is antithetical to the purposes of those who support them. Our fearless elected officials worry more about their own political skins than about their Constitutional mandate.

The Left understood this fact early on, and they enticed leftish-leaning representatives to support a strong Court to do their dirty work. Conservatives were slow to come to the realization of this conceited usurpation of power, preferring to work electorally to reign in the power of the Black Robes. That the Left had control of the dissemination of information (Media, Universities, publishing houses, advertising and entertainment) and held sway over Congress since Roosevelt, made them invincible in advancing their radical agenda. The Courts acted as the Left`s ``Martello``, the liberal`s mafia hammer, which could force ridiculous and despotic social experiments off on the citizenry in the name of fairness and Constitutionality. The right would huff and puff, but in the end would obey Court rulings because of a belief in the Rule of Law, a rule which had long been broken by the radicalizized Judiciary. Judicial edict came to trump the spirit of the Law.

The old arguments for lifetime appointments for the Judiciary no longer work. The Courts have become too powerful, and the appointment of one activist Justice to the Supreme Court has repercussions for half a century or more. The Founders hadn`t foreseen this. They believed that the Judiciary should be shielded from political winds, but the Judiciary has become the Hurricane which is blowing those winds through our society. At present, we have absolutely no way of holding this branch of government accountable. It has become the most powerful branch, with the Executive and Legislative Branches asking how high when the Court says jump. Furthermore, as Jeff Jacoby points out, with the increase in longevity Justices now can spend decades on the Court instead of years. This has to stop.

The Founders had originally planned for a government of the people, by the people, and for the people. Unfortunately, it has become a government of lawyers, by lawyers, for lawyers. How many of our representatives are NOT attorneys? How many Judges or Justices? It has become common wisdom that Judges and Justices must be Doctors of Jurisprudence, but that was not at all what the Founders intended. Where, pray tell, is that qualification in the main body of the Constitution? Why isn`t it there? Because that was never their intent to have America governed by such a narrow school of thought. Furthermore, the concept of Lawyer has changed since the days of our Founders; much of what a lawyer studied in the 18th and early 19th centuries was Natural Law (i.e. philosophy). Patrick Henry read a few books on Natural Law and took the examinations for his license. (This was not a written test; it was done through private interviews with respected lawyers. Two out of three had to assent to granting the license, and Henry became an attorney only because one of his examiners took pity on him and made him pledge to study hard in the future.) Lawyers used to be men of learning in general; not just specialists in the manipulation of an arbitrary legal code. Unfortunately, Lawyers have attained ascendancy in all aspects of government in America.

It`s time for a change! A good start would be to term-limit judicial appointments.



Anonymous Anonymous said...

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4:31 PM  
Blogger TJ Willms said...

Another homerun Tim,

We do have way too many layers of lawyers involved in the political process. They have a penchant for writing laws that only a lawyer could understand but we all have to live by. You also make a great point about the “elected” officials ceding their responsibility to the unelected and unaccountable members of the bureaucracy. The act of any politician in appointing a “Blue ribbon committee” to investigate any given issue is the most frequently utilized example of this kind of hand over of power and the responsibility that goes with it to non governmental organizations.

It allows the politicos to stand aside feigning innocence when these committees hand down their verdict. These recommendations are most often politically unpopular and the elected officials have cover because they can blame it all on the “experts” who make up the committee. Unfortunately for us, it almost invariably results in nearly identical legislation.

Great to see you back at the keyboard!

1:54 AM  
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I thought that anonymous was a spam comment, but a quick glance suggests that it is a true link site about autism (probably because of my fragile X discussion).

Anyone interested in autism may want to check it out.

12:19 PM  

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