Another Modest Proposal
Both sides of the aisle dislike extremist judges. (The Right tries to define theirs as not "activist judges" on the basis that activism implies liberalism, but they have their share of extremist judges as well)
So how about we change the rules. Consistent with my belief that the country is strongest when one party controls the Executive branch and the other the Legislative, I don't think EITHER party should control the Judicial. Instead of this constant jockying for position, trying to push through judges on your end of the political spectrum while you're in control, and then watching the other guys load up the other end of the see saw when they are in charge, how about a new way of doing things?
Perhaps all judicial nominees should be subject to approval by both parties, regardless of who nominated them, or should be subject to a two-thirds majority in order to be confirmed. This would prevent activist (or extreme) judges in both directions and ensure that our court was centrist, middle of the road, right where judges really ought to be.
There are other ways to accomplish the same thing, but in the end, we want judges whose interpretation of the constitution is fair and balance, not too extreme in either direction. And don't fool yourself, it IS a job of interpretation. If it weren't, if every situation were explicitly spelled out in the constitution, there would be no need for judges, just librarians to find the related passage. When most rulings come from interpretation of what the framers of the Constitution and it's Ammendments WOULD HAVE MEANT, if they were around to apply it, there's room for differences of opinion. As a result, there is room for extremism in both directions.
Copyright (c) May 17, 2005 by Liam Johnson. http://www.liamjohnson.net
posted by Liam at 5/17/2005 10:18:00 AM
10 Comments:
Liam,
Just let the process work like is has up until the Bush II presidency. Vet the appointments for competency and let the majority give them an up of down voet. The majority changes over time as it always has and the flavor of the judges appointed will follow. Right now we have a conservative majority which should result in a conservative flavor for the appointments. When that changes it will go back to liberals. Sore loosers should not be able to block the process.
Tuesday, May 17, 2005 1:19:00 PM
It has nothing to do with sore losers. It has to do with making the process better.
In my view, Justices and Judges should be moderate, always. They should not be extremist in either direction, and the party in power shouldn't be secretly hoping one of the SC Justices will kick it, so they can put in "one of ours".
I'm perfectly comfortable saying "Let's make this the new policy, to take effect starting with the next administration", so that at this point we don't know if it will first affect a Dem or a Rep. I agree making the change with a SITTING President kind of screws that President.
But for the future, wouldn't it make more sense to make sure our entire judiciary was moderate, acceptable to both sides, rather than sliding back and forth like it does now? It would make the courts and their rulings more consistent, IMO.
Liam.
Tuesday, May 17, 2005 2:00:00 PM
There are times when no law applies
and the judges should rule that way and state that the elected Representatives of the people need to address the issue with a voted on law. In Canada and the United Kingdom, abortion is not nearly as devisive as it is here because abortion was made legal and clearly defined by a majority of the elected officials instead of a group of judges invalidating all existing laws. With that kind of Representative Democracy you can change the law by convincing a majority of the voters and their duly elected Pols. with your logic and have the law changed.
Tuesday, May 17, 2005 4:24:00 PM
Anonymous,
Excellant point.
Tuesday, May 17, 2005 5:17:00 PM
That's a good point, but I think it would FURTHER delay justice in our country.
The courts are hopelessly jammed up with cases, and to work your way through the ranks to the point where you're in front of a judge, only to be told he or she can't make the decision, that'd be kind of like waiting four hours in line to vote, getting to the front, only to be told that (with no signs or announcements in evidence) YOUR district is in the OTHER line, across the room, that's also four hours long.
However, the idea has merit and deserves more thought...
Liam.
Wednesday, May 18, 2005 8:53:00 AM
But, what do you do when they can't hit a 2/3 majority... do you say majority if 2 seats are vacant, three seats... I think that with the way they do things in the Senate, I can see the majority party holding the positions 'hostage' as a method of getting their further agenda passed.
Janet
Wednesday, May 18, 2005 9:01:00 AM
There is always that concern, but that's always been a concern. In my opinion, there's less to hold hostage when all nominees have to be moderate anyway, because now you're just being obstructionist, rather than perhaps blocking someone whose views are too extreme for your taste.
Certainly when the Senate majority has been of a different party than the President, we have seen things like the holding up of nominees for political gain. But one thing which we WOULDN'T see as much of would be holding up nominees of so-called "Lame Duck" Presidents, on the hope that ones own party will capture the White House flag the next election cycle, and will then be able to fill in the seats left empty.
What's the point, if you know that, your guy or there's, the judges are still going to have to be moderate? Supposing the Democrats take back the Senate in the next election, but supposing these new rules were also in effect. Bush probably wouldn't even bother nominating extremists, he'd know they'd never get through, and the Dems wouldn't bother blocking moderates, because they'd know that President Hillary (shudder!) would have essentially similar candidates to nominate in 2008 anyway.
My opinion. But that's the kind of responses I really like to see, pointing out aspects of my arguments that I may not have previously noticed, or unintended consequences that I haven't thought of.
(Oh, I just noticed that this latest "Anonymous" is Janet, my wife and co-blogger. Oh well, doesn't change my feelings on the response.)
Liam.
Wednesday, May 18, 2005 9:52:00 AM
Liam,
I think that you aren't understanding the vigor that Republicans approach these things with. I know that it would be difficult to get a simple majority on any pro-choice judge from Republicans. They simply won't vote, no matter what the reprecussions, for a prochoice supreme court justice, no way, no how. You could approach it as reasonably as you like, but as much as it is irritating to deal with the far left or the far right, most people who are against abortion consider it murder, and the power that supreme court justices wield... well, they would not go along with it.
While you may be centrist (and regardless of what Ralph says, you are), the people that approach things a bit more (ummm) radically feel that they are defending the more basic rights of life and liberty. Once they set upon the road where this action, in their minds, results in death... they won't go there. It is a moral issue. There are tons of black and white issues in morality, and they feel like they are on the only side that they can be on. Even if they WANT to vote for someone who is pro-choice, they cannot.
I think that you are definately right when you say that the current system is inadequete. It is. But, there has to be a way of solving it that hasn't been explored yet.
Janet
Wednesday, May 18, 2005 11:40:00 AM
Liam, if you think a judge is moderate, conservative, or liberal depends on your political view from the judgement point. Senator Ted Kennedy thinks that the Supreme Court has some neo-conservatives, some conservatives, some moderates, l liberal and no extreme liberals.
As to the %'s you state concerning proposed judges and confirmed judges, your figures, as supplied by a couple of really left wing web pages, do not include Trial Judges for Bush. If you did you would find that his % of confirmed reduces to 53%.
Wednesday, May 18, 2005 9:57:00 PM
Actually, W, that's not true. The 53% number is old. The statistics that lead to the 53% number are from 2003 (there are even more extreme numbers from 2002).
The numbers I quoted are from as recent sources as I can find, and I've confirmed them as best I can.
Liam.
Sunday, May 22, 2005 10:16:00 PM
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