Saturday, December 31, 2011

Judges Behaving Badly

   Much has been made of Newt Gingrich's recent comments on the judiciary.  His ideas have been called "dangerous, ridiculous, outrageous, totally irresponsible."  But what is this ruling, the one Gingrich was specifically referring to, if not "dangerous, ridiculous, outrageous, totally irresponsible"?  Gerald Shargel scolds, "What Gingrich ignored last night ... is that under Article III of the Constitution, federal judges are appointed for life. Only personal misconduct can result in impeachment and removal."  What does Article III actually say?  "The Judges...shall hold their Offices during good Behavior."  And what exactly is "good behavior?" How often can a judge hand down decisions with no basis in the Constitution that he has sworn to uphold and still be on "good behavior?"  The argument is made that bad decisions by judges can be overturned on appeal.  True enough, but only by other judges.  Is judicial self-policing the only recourse left to We the People?
   Judges should be above reproach, not above accountability. Former Attorney General Alberto Gonzales pays lip service to "scrutiny" for judges, but then says "...the notion of bringing judges before Congress like a schoolchild being brought before the principal to me is a little bit troubling." This quote illustrates how judges have been exalted beyond measure.  Individuals are routinely called before Congress without regard to their rank or position, be they administration officials, bureaucrats, CEOs of corporations, or private citizens.  Does that imply that they are "schoolchildren?"  Are judges are free to hand down ludicrous rulings with impunity because they are really the "adults?"  No wonder the judiciary has a reputation for elitism.
   In more than 225 years, only 14 judges have been impeached by the House.  Does this record indicate we are on the verge of a judicial massacre if rogue judges are called to account for certain decisions?   Is the "separation of powers" a one-way mirror with the judiciary on one side and the Executive and Legislative Branch on the other?  Once a judge passes through the veil of confirmation, has he joined an exclusive club making Oz-like pronouncements from behind the mysterious curtain?
   Certainly unseating a judge should not be easy.  Indeed, we recently witnessed how difficult it is to impeach a president who had not only lied on live TV to the American people, but also under oath in court.  The bar is set high, as it should be for an irrevocable penalty like impeachment.  But the power of the judiciary has unarguably ballooned since the Constitution was ratified.  Only those who prefer the unaccountable force of the judiciary to accomplish their political or societal goals could object to steps to restore equilibrium to the power wielded by our three branches of government.

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