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.

Posted by in the categories: Judicial Elections, Merit Selection


One Response to “A Cry for Judicial Accountability”

  1. Gary L. Zerman on December 21st, 2011 6:29 am

    Brandenburg and Justice At Stake are shills carrying water for the judges/judiciary. They out front claim that their concern is judicial independence, but in fact they care NOTHING about judicial accountability. So actually they are about more UNACCOUNTABLE judicial power, judicial supremacy. (Go to their website and do a search re the “KIDS FOR CASH” scandal – they don’t say boo. And see below “The Piece Slate Magazine Refused to Publish.) Gingrich is on to something re the judiciary being out of control. More than he knows.

    First, when we allowed the House of Representatives to be capped at 435 in 1911 (America then had a population around 125 Million; we now are at around 320 Million), we abandoned one of our core Constitutional founding principles: A representative Republic. The House was supposed to be the pulse, the life blood of our Republic, the closest to the PEOPLE, to constantly go back to their constituents, listen to their grievances to quickly both LEARN & SOLVE the country’s problems. That is why the legislature was placed 1st in the Constitution – 1st among the three independent co-equal branches.

    First, by capping the House, since 1911 we have had ever diminishing representation. See WHO WILL TELL THE PEOPLE -The Betrayal of American Democracy (1992) William Greider.) And we now have more federal judges (866 fed court judges [+ 527 fed magistrates + 352 bankruptcy judges = 1745 ) than Reps (435) and legislators (535 = 435 Reps + 100 US senators). Thus the judiciary has leapfrogged over the legislature and everything ends up in court; issues do not get identified, addressed, heard and solved on the front end, but years later end up in court cases with judges having the LAST WORD. Feebly attempting to put the genie back in the bottle after years of litigation, delay and more confusing judicial fiat rulings. Meanwhile the process is ever consuming the content. Life just ain't as confusing as our legal/ judicial system has made it. The law is supposed to provide clarity and certainty, not create confusion and chaos. With the judiciary more and more having the LAST WORD - there is no one left to blame. (Corruptisia republica plurimae leges - The more corrupt the state, the more numerous the laws. Cornelius Tacitus [55 -117 A.D.].)

    Second, as Jefferson stated early on “Impeachment is a farce …” and “scarcely a scarecrow.” In our 221 years, only 15 federal judges have impeached. I missed the part where the black robe came with a halo & wings. Remember the quote: “Power tends to corrupt ….” Well federal judges are some of the most powerful individuals around.

    Third, Congress further abandoned its oversight of the judiciary by turning over the handling of misconduct complaints entirely to the judiciary. Thus the judges judge the judges. We know that the police won’t police the police. So why would the judges be any different? They won’t. They aren’t. Check the stats. Complaints about judicial misconduct are dismissed year-in-year-out across the country to the tune of about 100% without any discipline being imposed. See WITHOUT MERIT: The Empty Promise of Judicial Discipline – http://www.judgewatch.org/articles/without-merit-1997.pdf.

    Fourth, the judges unconstitutionally gave themselves the dastardly, despicable, doctrine of absolute judicial immunity – which covers corrupt and malicious acts. See Bradley v. Fisher, 80 US 335 (1872) and Stump v. Sparkman, 435 US 349 (1978).

    So considering points one, two, three & four above, Where are the checks & balances? Mostly illusory. We now largely have the Rule of Judges.

    Finally, here is The piece Slate Magazine Refused to Publish – Rebuttal to Brandenburg/Justice At Stake. http://victimsoflaw.net/SD_ZermanResponds.htm