August 22, 2013

Term Limits for Federal Judges?

I was asked what I thought of abolishing lifetime federal judicial appointments. This is a revised excerpt from my response:
Documented lack of federal judicial integrity has vitiated the very basis used to justify life tenure in the first place. ­­­­­­­­­­­­­­­However, although many remedies for judicial abuse have been proposed, none can now be adopted.
First, the federal judiciary is the last best hope of democracy’s losers. They are not going to give that up without a fight. Policies that cannot be adopted democratically are repeatedly imposed by judges – usually by stealth and unnoticed like noiseless and invisible thieves and worms, to paraphrase Thomas Jefferson. Yes, there are widely reported fiats such as on abortion and, recently, gay marriage. But these are the exception; in any event, most “journalists” focus on whether they like the results rather than on whether the results follow the Constitution or abuse judicial power.
Far more typical has been the gradual almost total neutering of the death penalty.
Second, although often unable to impose unpopular policies legitimately, democracy’s losers are strong enough to preserve judicial subversion of representative government. The Constitution, requiring extraordinary majorities, makes it far easier to block than to adopt amendments (except, of course, when the Supreme Court itself easily usurps amending requirements with reckless abandon).
Third, the Supreme Court is protected by the media. Unreported judicial outrages are limitless. In my view, the public would not tolerate rampant judicial abuse if actually informed.
Reform is now impossible. Unless overwhelming public support can be generated by exposing judicial lawlessness, in understandable language, to the disinfectant of enormous sunlight, it will only be an academic exercise in futility to muse about reform proposals.

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