The founders of our country are deservedly treated with near universal reverence. Which makes their disdain for the will of the people curious. Perhaps they were a product of the time, trusting reason over passion. Perhaps they could not completely excise their legacy of English gentry who believed they simply knew better. Impetus and motivation can only be gleaned from the documents left behind but ultimately the truth is relegated to the past. However, the undeniable fact is they did not trust us. At least not completely.
Although the Constitution of the United States grants more power directly to the individual than any document in history, closer examination reveals numerous safeguards against the so-called "tyranny of the masses". Layer upon layer of checks and balances prevent the passion of the moment from eliminating the possibility of sober reflection.
For this reason, the Founders placed the more deliberative wings of government increasingly further from the direct will of the people. The House of Representives is elected directly by the populace. The Senate, until ratification of 17th Amendment, is elected or appointed by the state legislatures. The Supreme Court is appointed by the President and approved by the aformentioned Senate. An elegant system placing those undertaking the most delicate and far reaching matters as far away from direct poltical influence as possible.
However, for some places in this vast country, the Founder's system is simply not good enough. In Georgia and select other states, we elect judges. Including our Supreme Court.
In the past, Georgia's system functioned. Judicial races remained for the most part "non-partisan". Everyone complicitly "jobbed" the system with justices retiring before re-election allowing the Governor to appoint a replacement. As most voters could care less about judicial records, the incumbent inevitiably is re-elected creating a default appointment system.
The tenor changed forever with the re-election of Justice Leah Sears in 2004. For the first time in memory, Republicans, not directly through the party apparatus but through proxies, directly intervened in the campaign against a sitting justice. As is natural in all conflicts, the other side responded in kind. To her credit Justice Sears stayed mostly above the fray.
Conflict brings escalation. In 2006, once again a sitting justice receives attacks from monied proxies. Justice Carol Hunstien chooses to not stay above the fray. Instead the citizens of Georgia are treated to the nastiest, most partisan judicial election in history.
It is obvious to all the system is broken and Representative Ed Lindsey wants to fix it. His solution to the increasing influence of partian proxies is public-only financing of judicial campaigns. For the most part, his reasoning is quite logical; remove the money, remove the influence, remove the ugly stain from a prestigious institution. He must be credited with going where few would dare to tread.
However, for all the valor for his effort, Rep. Lindsey's arguments are based on a foundation with a fundamental flaw. His only reasoning for maintaining the current system is the "will of the people".
The Founders understood prudence sometimes requires removing the will of the people. The question must be asked, why should Georgia continue to ignore their wisdom?
Although the Constitution of the United States grants more power directly to the individual than any document in history, closer examination reveals numerous safeguards against the so-called "tyranny of the masses". Layer upon layer of checks and balances prevent the passion of the moment from eliminating the possibility of sober reflection.
For this reason, the Founders placed the more deliberative wings of government increasingly further from the direct will of the people. The House of Representives is elected directly by the populace. The Senate, until ratification of 17th Amendment, is elected or appointed by the state legislatures. The Supreme Court is appointed by the President and approved by the aformentioned Senate. An elegant system placing those undertaking the most delicate and far reaching matters as far away from direct poltical influence as possible.
However, for some places in this vast country, the Founder's system is simply not good enough. In Georgia and select other states, we elect judges. Including our Supreme Court.
In the past, Georgia's system functioned. Judicial races remained for the most part "non-partisan". Everyone complicitly "jobbed" the system with justices retiring before re-election allowing the Governor to appoint a replacement. As most voters could care less about judicial records, the incumbent inevitiably is re-elected creating a default appointment system.
The tenor changed forever with the re-election of Justice Leah Sears in 2004. For the first time in memory, Republicans, not directly through the party apparatus but through proxies, directly intervened in the campaign against a sitting justice. As is natural in all conflicts, the other side responded in kind. To her credit Justice Sears stayed mostly above the fray.
Conflict brings escalation. In 2006, once again a sitting justice receives attacks from monied proxies. Justice Carol Hunstien chooses to not stay above the fray. Instead the citizens of Georgia are treated to the nastiest, most partisan judicial election in history.
It is obvious to all the system is broken and Representative Ed Lindsey wants to fix it. His solution to the increasing influence of partian proxies is public-only financing of judicial campaigns. For the most part, his reasoning is quite logical; remove the money, remove the influence, remove the ugly stain from a prestigious institution. He must be credited with going where few would dare to tread.
However, for all the valor for his effort, Rep. Lindsey's arguments are based on a foundation with a fundamental flaw. His only reasoning for maintaining the current system is the "will of the people".
The Founders understood prudence sometimes requires removing the will of the people. The question must be asked, why should Georgia continue to ignore their wisdom?
13 comments:
I think a better question to ask would be why it is better to have the nastiness in the dark back rooms than in the light?
I think a quick scan of recent US Supreme Court nomination hearings makes it crystal clear that opposition and / or support breaks down completely upon ideological lines.
With that in mind, we should show the people what is at stake rather than pretend we're all nice-nice-only-concerned-with-the-law here.
-Richard.
I've decided retention elections are the way to go. No opposition, no appointment for life and you're stuck with them. Do it like Florida: they get nominated through judicial nomination commissions and the governor, then every few years the people get a chance to keep them or throw them out. There's far less (if any) fundraising and bullshit attempts to politicize the judiciary because you only ask whether or not they are doing a good job, as opposed to whether Mr. Ambitious over here would do a better or more politically palatable job.
Of course, Rose Bird did get kicked out via retention elections so it's not impossible to effect a hit job on a sitting justice with unpopular decisions, but it's significantly harder and far less sleazy this way.
Richard, I don't have time right now to explain why I think you are wrong about the ideological lines but I will remind you of something I've said before. I expect legislators and activists to behave like jackasses. I expect better from the judiciary.
"I expect legislators and activists to behave like jackasses. I expect better from the judiciary."
And you think it's better to have the judiciary send their proxy legislators into the fray than to take their gloves off and wade in?
That's not better, that's just dishonest.
-Richard.
If it means not living with a popularly elected super-legislature? Yeah, I'm willing to live with those minor sins.
Just because you stick your head in the sand doesn't mean your undemocratically appointed judges aren't super-legislatures by their own rights.
From the judges I've known, most would snicker softly to themselves right before they throw your ass in jail for even hinting that anyone other than Constitution or God above influences their decisions.
Maybe in your world we should just throw the judiciary out completely?
To review quickly:
1) You said super-legislature first, not me. If you think that somehow magically being appointed removes this aspect, I refer you to Bush v. Gore, the 9th Circuit, and the 4th Circuit.
2) The executive is elected quasi-democratically. This only works out horribly about every 50 years or so.
3) The legislature is elected democratically.
4) If it works for 2 out of 3 branches, it can work for the third.
-Richard.
Why do you hate James Madison, Richard?
I don't hate James Madison. No one can hate James Madison. It doesn't matter what you think about issue X, James Madison changed his mind about it during his career.
Bill of Rights, National Bank, etc. - Madison was either against it before he was for it, or he was against it before he was for it...
Of course, considering his vaunted flip-flopping ways, I don't feel obligated to give his issue positions any weight, either.
-Richard.
Why do you hate John Kerry, Richard?
For losing.
-Richard.
Good answer.
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