asked what I thought of abolishing lifetime federal judicial appointments. This
is a revised excerpt from my response:
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.
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.
more typical has been the gradual
almost total neutering of the death penalty.
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).
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
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.