Bailing Out The Capitalists: - Page 2

XXL TideFan · June 23rd, 2009, 07:47 PM

Those are some excellent quotes........especially the last one.

TRUTIDE · June 24th, 2009, 10:32 AM

	Quote:	Bamaball2001
	In the end they are appointed by the POTUS and confirmed by congress, [who have their own agenda] not voted for by the people. To compound the problem they are APPOINTED FOR LIFE which is beyond ridiculous, in this ever changing society. I can't think of anyone else, in any country, who is appointed for life, other than a King; certainly not in the United States of America. What this means is that the judicial system has become the power in this country. It is no longer checked nor balanced and that spells the end of our unique form of government. That being government by the people, for the people.

I assure you that your frustration is shared by many. The whole process has become political. It is no longer about appointing the best qualified people who will interpret our constitution. Instead, the appointees have to be approved by various special interest groups. A strict constitutional judge will hardly pass muster. This results in more biased judges making laws from the bench instead of ruling by the constitution.

RamJamHam · June 24th, 2009, 10:54 AM

This will likely be an unpopular post, but the SC was NEVER meant to go along with the majority. In fact, everything about the structure of the SC (and the court system in general) was to allow access for the less-well-connected, to use a bad phrase.

Think about it. If you truly wanted strictly majority rule, why would you need a legal system or courts at all? You would simply submit disputes to the people, create a mechanism for discerning their majority opinion, and that would have the force of law. Woe be unto you if you or your position was an unpopular one.

Contrast that with the structure of the federal judiciary. They are not elected, so they are not really subject to the will of the majority except indirectly through the confirmation process. They are appointed for life, so they cannot be recalled for unpopular decisions. Sounds to me like the federal judiciary was designed specifically to provide a buffer between the will of the majority and individual freedoms.

Now, if you want to talk about the legal basis for some of the decisions that are made, that is another story. But I think you can argue pretty forcefully that the federal judiciary, at least structurally, is working pretty much as the founders intended.

cbi1972 · June 24th, 2009, 11:21 AM

Judicial Selection Method Smackdown: Appointed vs. Elected Judges

	Quote:
	Although federal judges are appointed with life tenure, most state judges are elected for short terms. Conventional wisdom holds that appointed judges are superior to elected judges because appointed judges are less vulnerable to political pressure. However, there is little empirical evidence for this view. Using a dataset of state high court opinions, we construct objective measures for three aspects of judicial performance: effort, skill and independence. The measures permit a test of the relationship between performance and the four primary methods of state high court judge selection: partisan election, non-partisan election, merit plan, and appointment. The empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals).

Tidewater · June 24th, 2009, 12:29 PM

	Quote:	RamJamHam
	This will likely be an unpopular post, but the SC was NEVER meant to go along with the majority. In fact, everything about the structure of the SC (and the court system in general) was to allow access for the less-well-connected, to use a bad phrase. Think about it. If you truly wanted strictly majority rule, why would you need a legal system or courts at all? You would simply submit disputes to the people, create a mechanism for discerning their majority opinion, and that would have the force of law. Woe be unto you if you or your position was an unpopular one. Contrast that with the structure of the federal judiciary. They are not elected, so they are not really subject to the will of the majority except indirectly through the confirmation process. They are appointed for life, so they cannot be recalled for unpopular decisions. Sounds to me like the federal judiciary was designed specifically to provide a buffer between the will of the majority and individual freedoms. Now, if you want to talk about the legal basis for some of the decisions that are made, that is another story. But I think you can argue pretty forcefully that the federal judiciary, at least structurally, is working pretty much as the founders intended.

I had not intended to be seen as advocating majority rule. If the judges want to rule on cases in a manner divorced from the provisions of the Constitution, however, then the thermonuclear option discussed above would be preferable to judges deciding on their mere whim or personal preference or sense of fairness, or any other standard they might choose.
The will of the people, as embodied in the provisions of the Constitution, is supreme. The people have ratified the document as written, because it was so written (including particularly the limitations the document places on Federal powers, including the Federal judiciary). When judges decide cases based on some other standard, they are engaging in a form of insurrection against the sovereign will of the people of the United States. The Constitution itself provides the remedy: Congress can disestablish the Federal judiciary (except the Supreme Court, which exists of right, not of congressional indulgence).
I would not recommend that option (because it would further politicize the Federal judiciary), but it is not inconceivable that, at some point in the future, a more thoroughly politicized judiciary might be better than one divorced from the sheet-anchor of the Constitution.
The members of the Federal judiciary would do well to remember that this sword of Damocles hangs over their heads and conduct themselves accordingly.

Tidewater · June 24th, 2009, 01:03 PM

	Quote:	RamJamHam
	This will likely be an unpopular post, but the SC was NEVER meant to go along with the majority. In fact, everything about the structure of the SC (and the court system in general) was to allow access for the less-well-connected, to use a bad phrase. Think about it. If you truly wanted strictly majority rule, why would you need a legal system or courts at all? You would simply submit disputes to the people, create a mechanism for discerning their majority opinion, and that would have the force of law. Woe be unto you if you or your position was an unpopular one.

To amplify my earlier post, let me provide a quote from Alabamian William Lowndes Yancey: "Minorities, gentlemen, are the true friends of our Constitution because that Constitution is their shield and their protection against the unchecked and unlicensed will of the majority."

The courts are not simply supposed to parrot the will of the majority, but they are subject to the Constituition which is approved (and amended) by a constitutional super-majority. The people of 3/4 of the states, in their sovereign constitution-making capacity, made the Constitution operable by adopting it 1787-1790.
It can be amended by 2/3 of each house of Congress plus 3/4 of the states' legislatures.
When the will of the constitutional super-majority is expressed, the Federal courts, like other branches of the Federal government, are bound by that expression.
So if Congress passed a law outlawing free speech, the Federal judiciary would be obliged to strike down that law, because the people in their superior, sovereign constitution-making capacity have already expressed their will that such a law shall not be made. That is where the Federal judiciary gets its authority to strike down a law.
If 2/3 of each house and 3/4 of the states amended the Constitution to allow Congress to abridge free speech (not that I am endorsing such an amendment), then the courts would then be bound to respect such a law.

Tidewater · June 24th, 2009, 01:12 PM

	Quote:	cbi1972
	Judicial Selection Method Smackdown: Appointed vs. Elected Judges

From talking to a UA law grad, he finds arguing before elected judges frustrating at times, for the reason you cite: they act like politicians.
As long as judges restrict themselves to ruling within the bounds of the constitution (federal or state), then I would generally prefer appointed (and senatorially-confirmed) judges.
Failure by a judge to so restrict his/her decisions, however, would be grounds for impeachment and removal in my view.