Lay Off Activist Judges

[Pangloss]

This is why I love reading the WSJ's opinion page. As ideological (partisan-right) as they are, they have an impeccable history of inviting intelligent and insightful counterpoint. This is a perfect example. Ted Olsen was solicitor general under the Bush administration until last summer (argued the 2000 election before the Supreme Court, IIRC), and has every reason in the world to hate "activist judges". But look at what he has to say.

 

http://www.opinionjournal.com/editorial/feature.html?id=110006597

 

It's a registration deal, so I've taken the liberty of quoting a couple of the more potent passages.

 

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world.

 

Every day, thousands and thousands of judges--jurists whose names we never hear, from our highest court to our most local tribunal--resolve controversies, render justice, and help keep the peace by providing a safe, reliable, efficient and honest dispute resolution process. The pay is modest, the work is frequently quite challenging, and the outcome often controversial. For every winner in these cases, there is a loser. Many disputes are close calls, and the judge's decision is bound to be unpopular with someone. But in this country we accept the decisions of judges, even when we disagree on the merits, because the process itself is vastly more important than any individual decision. Our courts are essential to an orderly, lawful society. And a robust and productive economy depends upon a consistent, predictable, evenhanded, and respected rule of law. That requires respected judges. Americans understand that no system is perfect and no judge immune from error, but also that our society would crumble if we did not respect the judicial process and the judges who make it work.

 

But, absent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with--and may dislike even more--adjudications made by presidents or this year's majority in Congress.

 

Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems. If a judge's decisions are corrupt or tainted, there are lawful recourses (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with--and intimidation of--the judicial process. And there is no logical stopping point once this power is exercised.

[Aardvark]

To summarise, he seems to be arguing that politics should be kept out of justice.

 

I agree. For all the imperfections that may exist in a judical system, political intervention will generally be a cure which is worse than the disease and it is a slippery slope, esp as governments have a great habit of interfering and extending their grasp in all circumstances.

 

The price of liberty is eternal vigilance, and that means watching the politicians.

[Skye]

Lay Off Activist Judges

Well maybe you disagree with individual opinions influencing judicial decision making, but they shouldn't be layed off summarily.

 

[Pangloss]

Hehe... that's funny, I didn't even realize that when I posted it. I just meant "leave them alone" -- totally missed the other meaning. (grin)

[Douglas]

Interesting that Ted Olson would say that, especially with some of the decisions coming out of the 9th circuit. I wonder if his late wife, Barbara, would agree with him.

Certainly Ann Coulter wouldn't.

 

BTW, a few years ago, when I had the shingles and couldn't sleep for 40 days, I used to listen to Stan Major...out of Florida. I live in NH and the local radio station dropped him, or his home station dropped him. Do you know what happened to him?

[Pangloss]

No, I sure don't.