A Cry for Judicial Accountability
December 19, 2011
Justice at Stake’s Bert Brandenburg takes GOP presidential candidate Newt Gingrich to task for his attack on federal courts, including a threat to arrest judges in order to compel them to justify controversial rulings. Bombastic? Surely. Over the top? Absolutely – and I have no interest in defending Gingrich’s proposed “solution” to the problem.
But Brandenburg’s main complaint against Gingrich – “Americans want courts that can uphold their rights and not be accountable to politicians” – misses the point. The real problem with activist judges today – and the reason Gingrich’s attack is winning applause among the conservative rank and file – is not that judges aren’t accountable to politicians, but that they increasingly believe they are not accountable whatsoever to the people they serve.
There are ample cases in our history to show that activist judges who consistently trample on the prevailing values of the people often elicit a political reaction by whatever means are available to restore the proper balance between the three branches. Witness the decision by Iowa voters last November to dump three Supreme Court justices for overturning the state’s defense of marriage bill – legislation that was overwhelmingly endorsed by the people and adopted by the democratically-elected legislature. Or the fact that a federal court ruling to ban the words “prayer,” “amen,” “invocation,” or “benediction” from high school graduations has become a hot campaign issue.
The obvious response is that judges must remain independent, without concern about making unpopular decisions. This is true as far as it goes. But independence is not the only virtue our Founders sought for the judiciary – they also believed that judges must be accountable. This is why the lifetime tenure provided to federal judges is balanced by judicial nominations that originate from an elected president and require confirmation by elected Senators. It’s why many states continue to select judges through democratic judicial elections. And it’s why Brandenburg’s efforts to promote “merit” selection – where judges are chosen by an unelected, unaccountable commission that is dominated by special interest groups and meets in secret – can never win much popular support.