ABA needs more cowbell
This WSJ op/ed reports on ABA (American Bar Association) plans to take over the appointment of Federal judges by means of so-called “merit selection.” The article highlights the problem with “merit selection”; in particular, do we want the politics of picking judges out in the open or behind closed doors? And I assure you, the process is very political.
Ironically, Tennessee and other states are moving in the opposite direction. It must really be irritating to the ABA, George Soros, et al, that states are refusing to go along with the ABA agenda. Whatever . . . the ABA needs more cowbell!
Also at WisdomisVindicated.
what do call the biggest illegal politicization of the judiciary in US history that has occured ‘behind closed doors” during the present adminisration? The AG acknowledged laws were broken but won’t do anything about it. How corrupt can one adminisration be?
Yikes, not another William.
How corrupt can one adminisration be? I don’t know, it depends if the Dems get beaten again at the polls . . . the rhetoric is getting diminishing returns.
That being said,
1) the persons in question were EXECUTIVE BRANCH (not judicial) at will employees and political appointees.
2) And the offending parties were axed.
Some scandal.
Which reminds me, after applying for a job as an asst. USAtty. I heard back from a friend in that U.S. Attorney’s office that the Clinton-era appointees reviewing applications were aghast at the political positions I’d held per my resume.
More cowbell!
I’ve written about this before, but if I had my way, all judges would be appointed by the relevant executive (state, federal, whatever) and the appointments would be confirmed by a two-thirds majority of the relevant legislature. Judges could be removed by a three-fourths majority of that same legislature.
Why a 3/4 majority and not a 2/3 majority?
A couple of reasons for my numbers.
First of all, justices should be above partisan politics, which means that they should be approved by a broad (and presumably bipartisan) majority. 51-49 just doesn’t cut it — you wind up with ideologues one way or the other. I figure if neither side is thrilled about a justice, but both sides can live with him/her, that’s a “win” for we the people.
As for the 3/4 majority, I just think it makes sense that the burden for removal ought to be more difficult than the burden for confirmation. I want a way to remove them, but I want it to be exceedingly difficult, such that justices are only removed for egregious violations/behaviors/whatever, rather than just because of short-term political whims. In any case, for federal judges, there’s no explicit method for removal, so this constitutes an improvement, in my book.
3/4 Removal is nearly impossible. If you’re going to require a 2/3 approval, then a 2/3 removal is more reasonable.
Unfortunately, your plan will befoul the justice system, as a President and Congress of opposite parties (or Executive/legislative) will never get to a 2/3 approval without countless negotiations. Given the number of appointments needed, it would be a rigorous vetting system. I wish our political system wasn’t as polarized.
The partisan system, wile flawed, is a bit better, as, so long as there’s not a prolonged majority in the executive/legislative branch, there will be a population of judges of either ideology and it will run somewhat equally.
Besides, the legislative is merely there to advise and consent the appointments of the executive. The more power stripped from the executive for judicial appointments, the less likely to have timely appointments.
I think that wouldn’t be a bad system, tg. I have to say, though, that it concerns me that rather than having a full-throated debate about judicial philosophy, we would have to “settle” for justices who were squishy or unremarkable. Let’s have the debate and let the executive or legislator in question be accountable to voters for how they come down on the issues.
But, it is really astonishing to me that the ABA is pushing this idea at this time in history. In my opinion, it’s a hint of “Damn the torpedoes!”
The problem is, I don’t think it’s really possible to have that debate. Bottom line is, the general public couldn’t give two squirts of piss over high-minded judicial philosophy. All they care about is whether they like rulings or dislike them, and they’re going to be split pretty close to 50/50 on the controversial ones (which is most of what makes it to the Supreme Court — the fact that they’re controversial is why they make it to the Supreme Court).
I’ve been watching judicial philosophy debates in the blogosphere for some time now, and that’s really what it comes down to. Sure, SCOTUS-bloggers generally try to wrap up their arguments in high-minded philosophy and what not, but at the end of the day, they’re praising the rulings that they like and condemning the ones that they don’t. And by “like,” I mean that they like the outcome, not necessarily the reasoning behind it. (I’m convinced that “activist judge” simply means “a judge who makes rulings I don’t like.”)
Frankly, I don’t think we should be striving for a one-size-fits-all judicial philosophy. Nor do I think that justices need to be “squishy,” to use your term. But ideologues are bad, mm’kay? Balance is your friend. Rather than insisting that justices should only look at the letter of the law (as judicial conservatives generally do) or that they should only look at pragmatic concerns (as judicial liberals are accused of doing), why not strive for justices who seek balance between these two?
OK
But the question is moot. Both sides have “litmus tests” for judicial appointees. And at that point, you’re screwed. Congress is appointing people based upon ideology, which, as you said, is a bad idea. Congress should be checking to make sure Judge Joe Smith has a mind capable to working on the SCOTUS. Let the President make his appointees, and reject those who are unqualified by legal standards, not political litmus tests.
But ideologues are bad, mm’kay? Balance is your friend. Rather than insisting that justices should only look at the letter of the law (as judicial conservatives generally do) or that they should only look at pragmatic concerns (as judicial liberals are accused of doing), why not strive for justices who seek balance between these two?
I’d say that being an ideologue on behalf of procedure/process is no vice. “Balance” as you’ve described it is merely discretion. If I have to get 3/4 of the legislature to agree before holding a judge to account, that discretion is virtually unbounded.
CaptainBrainstorm:
Both sides have “litmus tests” for judicial appointees. And at that point, you’re screwed.
Such tests can continue to exist only because one side or the other gets temporal narrow majorities and can use these to get their way. If broad, bipartisan approval is required, such litmus tests become very difficult to strictly adhere to. In order to get the two-thirds majority needed for confirmation, compromise would become a requirement. And, for what it’s worth, most federal judiciary appointees are actually confirmed by a much wider margin than 2/3. So implementing this limit really only serves to keep out the highly contentious candidates.
nedwilliams:
I’d say that being an ideologue on behalf of procedure/process is no vice.
It is if the procedure/process consistently leads to unjust results. But that aside, the problem is that there’s simply no such animal. Look at pretty much any case that goes before the SCOTUS, and you can reliably predict how at least seven of the nine votes are going to wind up, without hearing the arguments, and without knowing the finer points of the law. You can do this because you know that they’re going to vote in accordance with their political preferences, not with the law.
Scalia is (mystifyingly) revered for his jurisprudence, and yet he’s infamous for voting for the result he wants — the only thing that separates him from the others is that he spends more time trying to find post hoc rationalizations for his rulings than the others do.
Thus, if justices are essentially going to rule in accordance with their personal political preferences most of the time, it seems to me that the best we can hope for is a group of justices whose personal political preferences are palatable to a wide cross-section of the American people, rather than the type of ideologues we’ve been getting lately.
If I have to get 3/4 of the legislature to agree before holding a judge to account, that discretion is virtually unbounded.
I’m willing to give up that aspect. I was under the (incorrect) impression that there was no explicit existing process for impeaching a judge. The process actually does exist*, and is stringent enough that judges can’t be easily be removed by a spiteful legislature. The more important thing is to set the bar for confirmation higher in the first place.
* - Interesting note: Only 17 federal officials have been impeached in the history of the country, and 13 of these were judges. Of those 13, 7 were removed from office and another 2 resigned in the face of their impeachment. The last judge to be impeached was in 1989, and he was removed for perjury (of all things). (source)
It is if the procedure/process consistently leads to unjust results.
Take that up with the elected, accountable legislators who wrote the law.
And I disagree with your assertion about Scalia . . . though I’d agree that he’s rather predictable.
But I have no qualms expecting and demanding that judges aspire to the role designated for them in our system of gov’t.