Toxic? You’d have thought so from the reaction to the stink bomb set off by GOP presidential candidate Newt Gingrich’s bashing of judges at last week’s final Iowa debate. And he ain’t backing down, both at a follow-up media conference afterward and in an Op-Ed in last Tuesday’s USA Today, “A dangerous despotism.”
Why it’s a veritable danse macabre over the supposed end of judicial independence.
Sure Newt’s over-the-top. Subpoenaing judges before Congress? Eliminating the 9th Circuit? Oh – – – puhleeze, he’s trying to be the nominee. You’d of thought he was threatening to treat judges the way Romney did his dog, Seamus.
An overreaction to political pandering.
Anymore, though, it seems that whether there’s a smidgen or a slew, any criticism of the judiciary invites knee-jerk caterwauling, hair-pulling and breast-beating mortification. “Oh, the humanity!”
And notwithstanding the Newster’s bombastic bloviating, the rebuttals are as incendiary as the flammable vapors giving the self-aggrandizing gas-bag his lift. I doubt, for example, that “Gingrich’s threats against judges go way beyond the pale.” And no, Edwin Chemerinsky, bashing judges, is not the end of democracy.
Anyway, according to the Mayan Calendar apocalypse countdown, the end of the world is still another 365 Christmas shopping days away, exactly one year from yesterday. Having survived Harold Camping and the last “Judgment Day,” I’m still planning to mail my holiday cards next Christmas – – – even with the “End of the world speculation after a new Mayan discovery.”
Dignity of the conch.
Actually, last Monday there was indeed an intellectually provocative debate, “Newt’s radical proposals for federal judges,” between UCLA Law School Professor Eugene Volokh and Chapman University Law School Professor John Eastman.
Volokh was on the supposed Liberal side defending the purported threats to judicial independence while Eastman was again trotted out as the supposed Right’s reliable War Horse decrying activist judges and defending Originalism.
A pretty secure gig.
In the nation’s entire history, only 15 federal judges have ever been impeached. It’s a pretty good gig, as I’ve frequently blogged on merit selection and retention elections as well as on abiding judicial endurance, “If Ringo Starr can work past 70, what’s wrong with lifetime federal judges?”
Longevity? Endurance? Here’s an instance. Tying a federal bench record for energizer bunny-like constancy, still active Senior U.S. District Judge Wesley Brown turned 104 this past June.
At the time of our country’s founding, the average lifespan was 40. Supreme court judges now serve an average of 25.5 years. So it’s a long wait between appointments.
And as far as for job security where retention elections are involved, “Job security means working for the feds or sitting for judicial retention elections.” Like that old wristwatch commercial and that drum-beating rabbit, they keep on ticking – – – imperviously.
And notwithstanding the penitential hairshirt-wearing worriers, it took half a century before any judges finally lost a retention election in the anti-judicial independence bad boy jurisdiction of Iowa. See “The return of politics in judicial retention elections.”
And what about accountability?
So what about accountability? It seems to be tossed aside to protect the sanctity of judicial independence. To proponents, judicial independence is forever the 6-year-old crossing the street on her own for the first time.
As reported at “Merit selection & retention elections: Lifetime- tenure-light,” only a scant 1% of judges ever lose a judicial retention election. And even when bad things do happen, unlike lawyers where accountability can mean disbarment, face-saving resignation and deferential pension-protecting retirement are more likely outcomes, like the discipline of Judge James EnEarl and Florida First District Court Judge Paul Hawkes, the appeals court judge resigns over “Taj Mahal” case and just this week, Brunswick Superior Court Judge Amanda F. Williams, the “Powerful Ga. Judge Facing Ethics Probe to Resign.”
Little wonder, for example, that at “Who Judges the Judges?,” the Gotham Gazette‘s David King reports how judicial accountability in New York leaves some wanting, “Observers and many people who have had bad experiences say the state’s judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.”
And as for Judge Williams, was she ever mad at Ira Glass’s telling profile, “Very Tough Love” | This American Life. I have no doubt Glass was happy he wasn’t a lawyer regularly appearing before her. Access here the actual charges, In re: Inquiry Concerning Judge Amanda F. Williams, before the Georgia State Commission on Judicial Qualifications. Also see Ira’s blog post, “Judge Williams Steps Down.”
At its crux, then, to have any intellectual honesty – let alone any credibility, any debate on judicial independence must address its tension with the equally valuable principle of judicial accountability. And if it’s insufficient reason for elites to deign acknowledge the divergent whims of the hoi polloi, then certainly there’s that other touchstone called the Constitution to consider.
Moreover, any useful discussion must also examine our premised three-branch system of governance and its supposed consistent checks and balances, which often are more attenuated than unfailing.
And last, it’s not going to be the end of the world to engage these topics in the cleansing sunlight – – – even if the discussion is triggered this time by a political blowhard.
And besides, my own presumed Mayan blood prognosticates that we have at least another year to talk about it, anyway.
Photo credits: The Judge, woodcut from the Dance of Death series, 1523–26, 6.5 x 4.8 cm by Hans Holbein the Younger, public domain; Cancuenpanel3, licensed under the Creative Commons Attribution-Share Alike 2.5 Generic license.