PrintMay 23, 2011
Should We Elect Judges?
The recent hotly disputed judicial election in Wisconsin election brings home some deeper questions: should we elect judges? Should justice be political? Should it be ideological?
Whether judges should be political or not, they have been since at least the Dred Scott case in 1858. That decision may have led to the Civil War. The Roe v. Wade decision has caused a similar sort of civil war by lifting abortion out of the province of state law.
State judges, including state Supreme Court justices, are elected in many states. Seven states have partisan election of these justices, and electing lower court judges is common. Thirty-nine states have judicial elections at some level. The Brennan Center for Justice, named for a leftist cipher on the Supreme Court, finds that the entry of political campaigning into judicial elections threatens "fairness." That gives a hint about who finds the election of judges troubling.
Rasmussen recently provided more information about who favors election of judges and who opposes it. First, ordinary Americans support electing judges. A whopping 65% of Americans favor the election of judges, and only 22% feel that judges should be appointed. Also, 69% of Americans feel judges should adhere to term limits as well. Among the political class, however, a plurality of 49% believe that judges should be appointed, not elected. The partisan and ideological responses show that conservatives feel much more strongly that judges should be elected, but interestingly, Americans of all partisan identification feel the same: 78% of Republicans, 63% of independents and 55% of Democrats.
It should be apparent, after the Prosser judicial election, that the left will fight us at every level of power in every way that it can. Because that is true, conservatives should push for the election of every officer of state or federal government who holds independent power over our heads. Consider, for example, the impact if the presidents of state universities were elected by the people and if those presidents were given power to fire outrageous professors and expel unruly students. Very quickly, conservative values would be respected on college campuses.
The reality, as all conservatives know, is that the left prefers conquering appointive offices and institutions and using those offices to push its extremely unpopular and destructive policies. Leftists piously chant "academic freedom" or "judicial independence," all the while devouring our liberties. The greatest danger is the federal bench, the self-appointed mediator of every constitutional issue. Federal judges are immune to our will and indifferent to our wishes. In federal elections, how can "We, the People" control these elitist overlords? Only by (1) electing a president, (2) electing a filibuster-proof Senate majority, and (3) waiting for a justice to die or retire.
Why not change that? Why not amend the Constitution to provide that every federal judge or justice must be elected and reelected for terms of four years? Why not make states the electoral districts for district and appellate judges and make demographically equal clusters of states the Supreme Court "districts"? Perhaps the Chief Justice could be elected nationally. The federal bench, very quickly, would eschew judicial activism, which outrages the common sense of most Americans. Nondenominational school prayer, for example, might be allowed in those districts which wanted it. Federal programs which find no real grounding in Article I might be declared unconstitutional. Abortion could again be regulated at the state level by elected officials rather than at the federal level by shadowy jurists.
The left, of course, would raise every boogeyman it could, but there would be a fundamental problem in its arguments. The left favored direct election of senators and, doubtless, would abhor repeal of the 17th Amendment, something that many conservatives would support. The left today pushes hard for an end to the Electoral College and for the president to be directly elected. Why the president but not the federal bench? With most rank-and-file Democrats favoring the election of judges, the left would be on very thin ice in opposing the election of federal judges. After all, not only is such opposition undemocratic, but with our imperial judiciary, it is against accountable government as well.
We conservatives are not enamored of democracy (we are not enamored with government itself), but we are even more leery of insulated, almost invisible cadres of the left, who exercise real power without ever needing to persuade Americans that their policies are good or wise. If judges stopped ruling us, then the means by which they acquired and stayed in office would not matter. But judges are our rulers in many ways.
Should the proposal of this constitutional amendment be a partisan issue? Should Republicans overtly embrace it? Yes, and enthusiastically. We should point to how long judges stay on the bench. We should highlight the ridiculous rulings of many judges. We should say that if the Supreme Court is going to rule the people, then the people should elect its members. All the levers of leftist power are in cold, distant fortresses: establishment media, corrupt academia, bribed labor unions, and unelected federal jurists with lifetime appointments. One by one, the left is losing its control of these: its pet media is a joke, its colleges are seen as dishonest and totalitarian, and coerced unionism is being directly challenged by Republicans. When the radicalized federal bench is chosen by the people it wants to rule, then we will have won the war.
Bruce Walker is the author of Poor Lenin's Almanac: Perverse Leftists Proverbs for Modern Life.
