Sunday, October 23rd, 2016

The Shark makes sense


Rick Esenberg, Marquette Professor and a favorite legal mind, took a moment in the Milwaukee Journal Sentinel yesterday to look at the pitfalls of not electing judges.

Some scholars argue that appointed judges are more likely to adopt expansive notions of the role of the judiciary. Judges who need not answer to the voters may be more likely to adopt approaches to the law that expand the discretion and authority of the judges to pursue their own policy goals.

The poster case for this approach is, of course, the U.S. Supreme Court’s decision in Roe vs. Wade. Perhaps almost all abortions ought to be legal. But more than one legal academic has driven herself to the brink of insanity trying to find a constitutional mandate for that view that doesn’t leave judges free to create whatever rights they want.

Appointment may serve impartiality, but at the expense of accountability. This lack of accountability – if it contributes to an “imperial” judiciary – is just as problematic as electoral threats to impartiality, threatening to impinge upon the prerogatives of the executive and legislative branches.

And it attracts political attention. When judges believe that they can read the law in light of their political predilections, it is only natural to expect that people will come to care passionately about the ideologies of judges.

This is, in large part, responsible for the way in which battles over the confirmation of judges have turned into little Armageddons. Appointment doesn’t drive out politics; it just moves it from the campaign trail to the hearing room and, of course, the back room.

Although appointment for life may eliminate political concerns once a judge assumes the bench (at least if the judge doesn’t aspire to higher office), that impartiality comes at the price of a lack of accountability. Nor is greater impartiality ensured. More than one commentator has remarked upon the tendency of appointed judges to migrate toward approaches favored by what Justice Antonin Scalia called the “law profession culture.”

My question to those that favor the idea of appointing judges, do you really hate Wisconsin voters that much?

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