There is an excellent column on the judiciary today on Findlaw's Legal Commentary page. The
article by Edward Lazarus makes the point that liberals should not be quite so quick to condemn the idea of judicial reform. More below.
Lazarus starts out with:
To suggest, for example, that the recent tragic attacks on federal judges and their families are somehow linked to liberal judicial-decision-making is baseless, irresponsible -- even reprehensible.
But liberals should exercise some caution before coming to the judiciary's all-out defense. We are in the process of surrendering many of the more important questions facing this nation to the most imperial judiciary in American history - and not one that consistently exercises its unprecedented authority either wisely or well.
As Lazarus goes on to point out, we have only to look back as far as Bush v. Gore to find a good example of judicial imperialism.
I particularly liked this part of the column, and Lazarus' previous column on the subject:
The Schiavo Case: Its Judge-Bashing Was Unfair, But Some Judges Do Deserve Reproach
The sad plight of Terri Schiavo has brought out the very worst in judge bashing. As I explained in a previous column, in passing "Terri's Law," GOP conservatives set up federal judges to take the political heat for Schiavo's death. Then they turned, spitefully, on the very judges to whom they had passed their political football.
Although the legislation's conservative sponsors gave Schiavo's parents a nominal right to bring suit in federal court for violations of federal law, they gave the parents no new federal law rights on which to sue. As a result, Terri's parents were left with nothing but a series of transparently weak claims doomed to failure. Worse, they were left to present these claims before federal judges who were naturally loath to embroil themselves on an emergency basis in the extraordinarily contentious debate over Schiavo's right to control the circumstances of her own death - a debate that had already played out in state courts for twelve years.
With the inevitable denouement now having played out in federal court, the conservatives have compounded their original sin by heaping scorn on the federal judges who refused to order Schiavo's feeding tube re-inserted, denigrating them as "constitutional cowards." The real cowards, however, were the congressional conservatives who put these judges on the firing line in the first place, so that they themselves could remain out of the line of fire.
The senselessness of this particular brand of bloviation is readily exposed. The federal judges in the Schiavo case applied federal law in such an unremarkable way that not a single Supreme Court justice - not even Antonin Scalia or Clarence Thomas - expressed interest in granting the parents' asked-for relief or otherwise reviewing the case.
Now here's a part I'm having trouble agreeing with totally:
Though the Attacks Are Wrongheaded, the Federal Judiciary Is Deeply Flawed
At the same time, however, liberals are making a serious mistake to the extent that they choose to score short-term political points against the conservatives by jumping on every criticism of the judiciary. Not every suggestion for judicial reform is an assault on judicial independence.
Although he says it in service of a mistaken agenda, DeLay is right when he says that "judicial independence does not equal judicial supremacy." From Dred Scott to Roe v. Wade to Bush v. Gore, the federal courts, and the Supreme Court in particular, have a history of overreaching their proper institutional role to settle moral and political disputes despite the fact that there is scant constitutional justification for their doing so.
Over the last nineteen years, the Rehnquist Court has displayed an especially anti-democratic streak. Using sometimes specious reasoning, and deferring to the judgment of elected officials with decreasing frequency, the justices have struck down literally dozens of federal laws, as well as much state legislation. Often the justices have done so by the margin of a single vote, thus substituting judicial judgment for that of elected representatives on the basis of a single justice's idiosyncratic point of view.
Congress and the Executive branch have every right and reason to question this muscular exercise of unreviewable governmental power, and to criticize instances of judicial overreaching. Indeed, not to question or criticize would be to abdicate (as these branches already too often do) their own role in thinking about the meaning of the Constitution and its bearing on proposed federal action. The judiciary is not the only constitutional interpreter in our system; many others also take an oath to support the Constitution, and if their own actions violate it, they betray that oath.
First problem I have with this is the sentence "Often the justices have done so by the margin of a single vote, thus substituting judicial judgment for that of elected representatives on the basis of a single justice's idiosyncratic point of view." No,
a single justice ever decides a case. Five justices decide. Second problem - I don't think the judiciary should "defer" to elected officials. Elected officials are subject to whim and the fervor of the moment,
Third problem - if Congress and the Executive don't like judicial review, then they should bloody-well not write and pass laws that invite review! And when the judiciary overrules a law that Congress and the Executive passed and that they really want, then Congress does have a remedy - it's called constitutional amendment. Let's say Congress passed some stupid law banning some particular behavior, Bush signs it, and SCOTUS overrules it. If it's that important, Congress could propose a constitutional amendment. If the public really wants it, it will pass. So there is a remedy to deal with the judiciary, they are not truly independent.
I do like the discussion of reasonable solutions, althought I don't know how you can limit the tenure of judges in a meaningful way and still be fair to the fact that quite a few judges are good enough to deserve lifetime appointments.
Anyhow, good thought provoking column.