A SHOW OF HANDS

Posted in Rants on November 8th, 2010 by Ed

The tiny flame of optimism deep within my bitter core is kept alive by the infrequent occasions on which common ground can be found between people of radically different ideological bents. This is rare, even though in a functioning democracy it should not be. We should all be able to agree on the basic principles of our system; that the law should be applied to everyone fairly, that elected officials should be held accountable regularly, and, perhaps most importantly, that we are a nation of laws and not mob rule.

I struggle to think of an idea responsible for more historical wrongs than the half-assed populist assertion that the distribution of rights (i.e., the application of written law) should be carried out by a show of hands. In other words, courts should make decisions based on what a majority of the country wants. Thus if segregation is sufficiently popular, its blatant unconstitutionality should be overlooked. If gay marriage is unpopular, the role of judges should be to construct legal rationalizations against it. If abortion contradicts your moral code, the Supreme Court should be stuffed with ideologues until the relevant laws are struck down. If everyone is afraid of brown people in turbans, the legal system is obligated to agree that anyone caught up in the ensuing witch hunt has "no rights which the white man (is) bound to respect."

Only partisan hacks subscribe to this kind of logic. That is, only people whose principles are limited to agreeing with whatever their ideology or party says on a given issue are willing to advocate for such a system irrespective of the fact that any remotely educated understanding of the Constitution, our government, or the attitudes of the sainted Founders precludes it. Oddly enough, a correct understanding of civil libertarianism – not Glenn Reynolds/Megan McArdle "libertarianism" that provides a glib echo chamber for GOP talking points – brings the far left and right together in opposition to this kind of nonsense.

You can imagine how rarely I find myself in agreement with someone named Allahpundit, but the former Michelle Malkin employee has, to his credit, actually read enough to understand the traditional conservative position on the role of the courts. So rather than making this a left-right issue, it appears that this is an issue dividing people according to their ability to distinguish their asses from a hole in the ground. He states, regarding the failed retention bid of three Iowa state Supreme Court justices who allegedly were "pro" gay marriage:

Everyone wants courts to be independent enough to issue unfavorable rulings that the majority might not like; it’s the only way to protect minority rights, after all. But then, everyone (or almost everyone) also wants courts to be accountable somehow so that they’re not tying the majority’s hands with nutty extraconstitutional rulings. Iowa’s solution: Let the governor appoint supreme court justices but put each one to a “retention” vote every eight years. That’s a nice long period of time during which they can rule however they want without worrying too much about elections, followed by a referendum by the public on how they did. A happy compromise! Or … not so happy? (…)

One potential problem with the “retention” framework is that it doesn’t insulate judges from popular referendums as well as it purports to. For instance, the gay marriage ruling that got these three tossed was actually endorsed by all seven justices; the next one will be up for election in 2012, and may well be looking to “atone” somehow in his rulings before then if he gets the opportunity. That’s inevitable in a system where judges have to face the electorate at any point, but like I said up top, it comes at the price of total independence. (Imagine how desegregation rulings in the 50s might have differed if federal judges couldn’t rest easy in knowing that they had lifetime tenure.)

He is even astute enough to point out that any system that elects judges outright – as many states do for local, appellate, and state Supreme courts – might as well not even have a court if voters' criterion is, "Do I agree with the outcomes of the cases he/she decided?" At that point it would be cheaper, easier, and more efficient to simply decide how the law will be interpreted and applied via internet polls and AM radio call-in shows. The Founders were smart enough to insulate Federal judges from the whims of public opinion once in office; unfortunately few states followed their example. Electing a judiciary works if we assume the best of voters, assuming that they will choose judges based on competence and fairness rather than ideological or single-issue litmus tests. In reality, it cheapens the law and causes our system of checks and balances to collapse. Legislatures are conduits of public opinion. Courts exist to apply the brakes when public opinion demands things that contradict the basic legal principles of our system.

The still-anonymous (after all these years, no less) Allahpundit is probably against gay marriage while I am for it. But he/she understands that we are not supposed to be choosing judges based on whether they agree with us. Americans believe (or claim to believe) that justice should be blind, impartial, and consistent, yet they elect and reject judges using crude and uneducated opinions as a litmus test. It is to some extent a slippery slope argument, but one does not have to be a full-fledged alarmist to see the dangers of a judiciary that panders to the preferences of people fervently committed to a strange, imagined version of the Constitution and totally ignorant of the real one.