About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Tuesday, November 09, 2010

Voting out judges

Nothing much to say here, but this piece by Derek C. Araujo is worth a look if you don't usually frequent the Center for Inquiry's site. It's about Supreme Court judges getting voted out in Iowa in the recent American elections.


The notion that "the will of the people" rules supreme in the United States is seductive, but wrong in an important sense. Under our system of government, political majorities cannot use the ballot box to trample the rights of minorities. And the only people standing between minority rights and a tyranny of the majority are the men and women in black robes so frequently maligned by conservative forces.

Conservative critics of the judiciary make a great show of respecting "the Constitution." In my judgment, their stance is unprincipled. Judicial decisions they agree with must be respected under the Constitution and the rule of law; when shown a judicial decision they don't like, however, they fulminate against "activist" judges and "robed masters" who are "unaccountable to the people." Never mind that unaccountability to political forces is an essential component of the system of government enshrined in the Constitution.

The idea that (at least some) judges are elected in 39 of the American states is incredible. Araujo again:

This practice is virtually unknown in the rest of the world, and with good reason. As the Founders of the U.S. well knew, if judges are to render objectively fair decisions based on law rather than public opinion, the judiciary must be independent. If judges are to prevent the majority from trampling the rights of minorities and unpopular parties, they must be shielded from electoral politics, special interests, the need to raise ever-increasing amounts of money to fund elections, the force of public opinion, or fear of rebuke by powerful political forces. The Founders therefore guaranteed that federal court judges would not be elected, but would be appointed for life, subject to removal only on impeachment and conviction of "high crimes and misdemeanors."


James Sweet said...

In fairness, it has been my experience that the Good Guys (i.e. fellow liberals) are not immune from the inconsistency of cheering on judicial independence when they agree with a decision, and complaining about judges "ignoring the will of the people" when they disagree. It's not a strictly conservative phenomenon, though of course in recent years the silly "activist judges" meme has been almost exclusively a conservative one.

I'm not trying to equivocate -- it matters that one side is right and the other is wrong -- but I think the phenomenon of being unable to disagree but still respect the process is a more broadly human one than a strictly conservative one.

And I too am flabbergasted that we elect judges here in the US. I happen to live in one of the 39 states that does it, and so just voted for a bunch of judges last week. How broken is that? Yeesh...

Jeff D said...

In my home U.S. state of Indiana, we have what is generally regarded to be the best type of system for selecting all judges above the trial court level: All of our appellate court judges are appointed by the Governor from a group of nominees who submit applications to an expert and apolitical nominating commission. The commission interviews and "vets" the candidates in successive sessions that narrows the candidates to a final list of three. Once they are appointed, appellate judges face a retention vote by the public every several years, as an item on the general election ballot. Indiana trial judges campaign and run for election and re-election like other political candidates.