A question to Americans

Reading one of the other threads, a thought occurred to me and now I feel compelled to ask this question:

Does it concern you that unelected officials (judges) get to have a legal and political say on the interpretation of the Constitution? If not, what are the failsafes for ensuring that the judiciary doesn't end up being a marionette for the party in power/majority in the Senate?

Good question. All federal judges are appoint by presidents. It's been argued that they are elected by proxy because the people elected whomever to be prez and they get to do the appointments. I disagree with that philosophy even though it's kind of correct to a point. The problem, as you've stated, is how some pervert the meaning of a written constitution's laws. The other problem with that is how our congress (both parties) allow these judges to stay on the bench after making obvious unconstitutional rulings. Roe vs. Wade is a good example of that and should never have become what it became.

Our congress has impeachment powers not limited to just presidents (like Clinton for instance). Article 1, Section 2 of our constitution states that the House of Representatives has the sole power of impeachment. Article 1, Section 3 states that the Senate shall have the sole power to try impeachments.

On the state level, each state has it's own impeachment powers of elected officials (see Illinois ex-governor Rod Blagojevich). Also, most states have actual elected judges. Minnesota (and Texas) elect their state supreme court justices. They serve a term and have to be re-elected.

Excellent question Matt. I will answer for myself. Yes, I am very concerned about federal district judges and Supreme Court Justices legislating from the bench. This has been a huge problem for almost as long as our country has been around. As Matt has already pointed out, federal district judges and Supreme Court Justices are appointed by the President, and in the case of Supreme Court Justices, these appointees are vetted and then must face confirmation hearings by the Senate and receive a simple majority approval for the appointment. Of course the reason that Supreme Court Justices face these additional hurdles to appointment is because a Supreme Court decision can not appealed it is the final word on any case that comes before it.

However, vetting and Senate confirmation have proven to be less than effective failsafes (to put it mildly) in preventing judicial radicals to that bench. The proof of the inadequacy of our current process for appointing Supreme Court Justices lies in the many, many clearly unconstitutional laws that have survived Supreme Court scrutiny. Fixing it will be no simple matter, as it would require an amendment to our constitution to alter the process in any meaningful way. And that will only happen when things get bad enough to motivate the citizenry to call for such a move.

Btw, Matt... what made you ask this question? What thread made you want to implore?

I'm guessing it was the thread on the federal judge in Virginia ruling on the PPACA being unconstitutional that made him curious.

It concerns me a bit, Matt, not that they are not elected, but that at least in the case of SCOTUS, they get to keep their jobs until they drop dead.

At least in theory, the fact that they are unelected IS the failsafe. Job insecurity means you're corruptible. It means you have a vested interest in making your decisions 'popular,' particularly with those in a position to help you hang on to power. And popularity does not necessarily coincide with fairness or legal soundness. On the other hand, if you're job is guaranteed, you are above such considerations.

This theory seems to be generally born out in reality. The SCOTUS judges don't seem to be particularly sensitive to changes in political weather. Scalia has always been conservative, even when the Dems controlled the White House and both houses of congress. David Souter, who owes his job to the first Bush, has been consistently liberal--much to HW's chagrin, I'm sure.

I think it's a pretty sound concept, but I think it's taken too far. Letting them stay on for life is nuts, IMO. They should be given a full term of somewhere between 8-15 years. I think 12 years is a nice balance between on the one hand, removing the judges from corrupting political considerations, and on the other hand, allowing them to develop a god complex.

kronos wrote:I'm guessing it was the thread on the federal judge in Virginia ruling on the PPACA being unconstitutional that made him curious.

Yes.

kronos wrote:At least in theory, the fact that they are unelected IS the failsafe. Job insecurity means you're corruptible. It means you have a vested interest in making your decisions 'popular,' particularly with those in a position to help you hang on to power. And popularity does not necessarily coincide with fairness or legal soundness. On the other hand, if you're job is guaranteed, you are above such considerations.

I think we are goin to find we have a similiar problem in the coming years with The House of Lords where the hereditary peers (people who have had titles and land since well before there was a Parliament) have been replaced with the three main parties appointing their favourites and having them vetted by the Commons.

Anachronistic the former might seem, but I know which I prefer... especially while we still have a monarch.

kronos wrote:I think it's a pretty sound concept, but I think it's taken too far. Letting them stay on for life is nuts, IMO. They should be given a full term of somewhere between 8-15 years. I think 12 years is a nice balance between on the one hand, removing the judges from corrupting political considerations, and on the other hand, allowing them to develop a god complex.

Yes, a long term will allow them to really get into the job while the long term 12-years-and-no-exceptions clause will remove the short termism of constantly seeking reappointment/reelection.

Thanks for your explanations guys.

It's funny how some of our USSC judges turned liberal or centrist a few years after being nominated. A few of ours that are, imo, liberal were nominated by Repubs. But I saw an interview with one of them a few years back and he said that his conservative views changed after being on the bench... because the word there (as Dbl pointed out) is the last word and affect many people if they get it wrong.

To me, that's bullshit. A judge can't invent a constitutional right or lack of a constitutional right.

TexasBlue wrote:It's funny how some of our USSC judges turned liberal or centrist a few years after being nominated. A few of ours that are, imo, liberal were nominated by Repubs. But I saw an interview with one of them a few years back and he said that his conservative views changed after being on the bench... because the word there (as Dbl pointed out) is the last word and affect many people if they get it wrong.

To me, that's bullshit. A judge can't invent a constitutional right or lack of a constitutional right.

It is bullshit. A Supreme Court Justice has one job and one job only; to determine the constitutionality of the decisions in the cases that come before them! That's it! There should be no other consideration weighing on their minds! Period!

To be fair, some cases have a fine line. It makes me brings up the case where the USSC ruled several years ago that states can't have anti-sodomy laws. In this case, it was Texas. But that goes back to the Equal Protection Clause. I'm not some pro or anti-gay person, but I found that ruling somewhat acceptable. On the other hand, it opens up the can of worms regarding polygamy, incest, child "love" (molestation) and cases of that sort.