Hot Air

17 November 2003


Senate Filibusters Judges -- System Broken

The US Senate engaged in a 30-hour debating marathon over the nominations of four jurists to the federal bench. The filibuster brought a circus atmosphere to the Senate chamber, with cots provided and hysteria on tap. "This is a phony filibuster on a phony issue," said Senator Pat Leahy (D-VT), and he was right. The problem isn't with the Senate, the White House, the Democrats or the Republicans. The current mess is the fault of the constitution.

Under the American system, there are three co-equal branches of government, in theory. However, in practice, the judiciary is not the equal of the other two. It is not independent nor is it responsible to the people. Its members are chosen by the White House and appointments can be vetoed by the Senate. Once confirmed, the judge sits for life. There is permanent unaccountability.

The result is that a president will try to appoint those who will support his program long after he is out of office. And he will get the help of his party in the Senate. In the case of moderate judges, these go through on the nod. But a good militant on the bench (right or left) is a political boost for years to come. And there is no recourse short of impeachment and constitutional amendment.

It is hard for many Americans, especially those with legal training, to admit, but judicial appointments are political. The interpretation of a law is no less political than its enactment or its enforcement. The current system is built on a denial of that fact. The Founding Fathers, whose wisdom was above average, distrusted the people, distrusted the executive, distrusted the legislature, and then, somehow, put their faith in judges.

Judges must be treated like the political actors that they are. Many will argue that direct election of judges is a bit much for the population. The same was said of the Senate until the early 20th century when the constitution was amended to allow for direct election to the Senate. However, any system will be flawed beyond what is rational if there is no accountability. Blaming the militants in the GOP or Democratic Party is to focus on the symptom and not the disease. There is far less value in appointing a hard-line judge if that judge is going to be held political responsible for his decisions. Recall, term-limits, direct election, a lottery followed by drawing straws, anything would be better than the current non-system.

Home