Congratulations, Sam Alito! And congratulations, U.S.A.: It now looks like we have four out of nine justices who will not legislate from the bench. But we still have a structural problem in our federal judiciary, one that is hard to solve.
For anyone who believes in our natural tendency toward sin, the Supreme Court has always been a troubling institution. The anti-federalist New York Journal complained in 1788, during the debate about whether to ratify the Constitution, that some justices would twist the law as they saw fit: "They will not confine themselves to any fixed or established rules."
The Journal saw only one way to stop such abuse: "When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it." The Journal, though, did not have a specific recommendation, only that the court "ought to be liable to be called to account … by some body of men."
"Some body," yes, but which? Pleasant as it might be for the Senate to call to account David Souter or Anthony Kennedy for disappointing so decidedly those who appointed them or worked hard to confirm them, the judiciary cannot be a separate but equal branch of the federal government if its members maintain their jobs only through the indulgence of another branch.
The only body capable of reining in runaway justices, without creating judicial subservience to Congress or to the executive branch, is the body from which, according to the Constitution, all three branches derive their authority: "We the People." If the goal is to keep judges humble, making them run for office and then for re-election will do the trick.
The Constitution did not set up voting for judges, but voters in some states — most notably, Texas — do elect judges through direct partisan elections. The problem with electing judges, though, is elections — which these days means dialing for dollars and speechifying on what may be the subject of future judicial rulings.
Texas elections do keep judges lassoed. They also force candidates for the Texas Supreme Court to raise millions of dollars, with much of the money coming from lawyers, law firms and litigants who are appealing to that same court. Since political and judicial temperaments vastly differ, a slick campaigner is as likely to be a good judge as a football team captain is to be a chess master.
I’m watching from my Austin vantage point now the attempt by Don Willett to win election to the Texas Supreme Court. Our governor last year appointed him to an open seat, and now he has to run like crazy in the March 7 GOP primary and then in the general election. I knew and spent time with Don when he worked for Gov. George W. Bush in developing compassionate conservatism in Texas. He’s smart, highly disciplined, hardworking and fair, with all the characteristics needed for good judging. But he’s not a pandering politician, and it’s weird that he has to hit the hustings day after day.
So is there a middle road between the extremes of non-accountability and electioneering? Maybe California has the better system: The governor appoints judges, but voters can remove those who go wild on the bench, and did so 20 years ago after California Chief Justice Rose Bird voted against the death penalty in all 61 of the capital punishment cases that came before her.
Californians saw that she was substituting her own opinions for the laws and precedents upon which judicial decisions should be made. The successful anti-Bird campaign ran television commercials featuring the children of the victims of the murderers whose sentences Bird had voted to reverse. California judges don’t have to run and keep running for office, but they are not beyond recall.
Maybe that’s the approach for the whole country: no lifetime tenure, no recurring elections, but a check on abuse.