Monday, June 30, 2008

End the Judgeocracy   [Mark Krikorian]

I think we opponents of expanded judicial power are missing an opportunity in the wake of the D.C. handgun case and a couple of others that we approve of, but the Left does not (the Medellin and voter-ID cases, for instance). The discussion usually focuses on who voted which way, the illogic of much of the reasoning, the likely consequences of November's election on the makeup of the Court, etc. (NRO's own Bench Memos, of course, is always on the case; also, post-mortems in the Post and the Times.) This is all important stuff, but if we're ever going to have a chance of ending the Judgeocracy, we need to change the game altogether, to rein in the institution of the federal judiciary itself, not just try to get better judges and justices (as important as that is). And, since the Left usually likes what the judges come up with, we need to be prepared to pounce when there are high-profile decisions the Left hates, to find allies for institutional reforms.

I'd love to repeal the 17th Amendment, for instance, something one of Jonah's readers pointed to as a cause of the expanded power of the Court, though I'm afraid that's an indirect remedy, at best. A more radical re-assertion of elected officials' authority over interpretation of the Constitution would be to follow Hadley Arkes's advice echoing Lincoln's reaction to Dred Scott, to respect any unconstitutional decision by the Court, "but only as it bore on the litigants of that case" — in other words, reject the Court's authority to establish as precedent principles which the president considers unconstitutional. For a Republican president to be able to do this without being impeached it would require careful selection of a case where the principle underlying the Court's decision is anathema to the Left, as a way of re-establishing the political concept that the Constitution really is not whatever the Court says it is.

Perhaps most feasible would be term limits for all federal judges — a single non-renewable term of, say, 11 or 13 or 15 years, then out. This would drain much of the poison from judicial nomination process, because it would no longer be for a lifetime appointment. Larry Sabato, no conservative, is only the most recent to suggest this, and if it could pass Congress, I think it would have a good chance in the state legislatures. But it could only get out of Congress if we have something ready to go, and we push it in the wake of decisions that we approve of —an argument against interest, as it were, at least superficially.

06/30 07:02 AMShare