Dailytakes

Mike Dean has a good column in the Journal Sentinel.

And so, inevitably, we now hear the calls to remove judicial selection from the soiled hands of voters and delegate it to panels of impartial experts uncorrupted by political loyalties and beyond ideological taint. These “experts” would be lawyers, judges, legislators and other insiders, of course, and the unconcealable purpose of the alleged reform is to make sure nothing like the Butler sacking ever happens again.

An expansionist judiciary is useful primarily to those advocating unpopular ideas as a tool to undo or supersede choices made by voters, by elected legislative bodies or by social consensus. On rare occasions, some things do need undoing (the Supreme Court’s own disaster in Plessy vs. Ferguson, for example, which it later had to undo in Brown vs. Board of Education), but far more often the results are troublesome.

Not by coincidence, an expansionist judiciary removes societal decisions from the people at large, enabling outcomes to which they demonstrably would not otherwise consent. Since the periodic need to face those pesky voters is the only barrier separating an aggressive judiciary from untrammeled freedom to order up its desired outcomes, it is hardly surprising that the coalescing legal oligarchy would like to remove from the voters’ hands yet one more decision: determining who will be the judges.

The degree of impartiality to be expected from such a process may be fairly inferred from the intensity of its proponents’ support for Butler and their reaction to his defeat. One can hardly imagine the same degree of exasperation if a judge dedicated to applying, rather than making the law, had been voted off the bench.

Apparently unaware that elected state judiciaries was a populist anti-slavery strategy to begin with, the usual suspects are reacting to Butler’s defeat by proposing mechanisms that would eliminate any risk of future setbacks; mechanisms that would allow judges to escape having to face the voters at all. In other words, a maneuver to further insulate the least accountable branch of government, gussied up as reform.

Jefferson’s warning cannot be ignored. It is up to the people to ensure that the most chilling aspects of his prophecy are not realized.