Judges are also unelected bureaucrats, and they are less subject to democratic oversight since they have lifetime appointments vs agency heads who are appointed by the executive branch and can be effectively "voted out" if voters choose a different president who replaces them.
I don't see U.S. (or any) elected officials, including Congress and the White House, making better decisions. All have made atrocious decisions.
The argument in the parent is well-worn, but it fails serious consideration if it ignores the facts that the U.S. courts interpret laws made by the elected officials, that the judges are appointed by elected officials, that their unelected status is established by elected officials and a national referendum (i.e., the votes that established the Constitution), and the reasons for their unelected status.
Judges everywhere tend to be "unelected". That's not innuendo. It's a fact that constitutional and legal scholars tend to be acutely aware of when determining the scope and balance of powers in a judiciary. Constitutional scholars constantly raise the same point about the US Supreme Court: its justices are unelected, and we are not a nation governed by philosopher kings.
The entire point of life appointments is to remove partisanship from judicial decisions. If the judges were up for election, their performance would most certainly suffer.
For example, look at the Federal Reserve. They are supposed to be independent from politics, but their head is appointed by the president every X years, and so they naturally make the decisions that guarantee them reelection and not the decisions which would maximize economic stability/utility.
Removing Chevron deference moves authority from the administrative agencies to the courts, who are not only also unelected bureaucrats, they are more insulated from democratic forces since they have lifetime appointments. Agency heads are political appointments and change with every president.
>Unelected judges will have free rein to impose their own views in these cases.
As opposed to unelected bureaucrats who serve at the whim of the executive branch and are often political appointees? Do you not remember the meltdown this site had over Trump's FCC commissioner and his views on net neutrality?
The people don't vote for federal judges, who have lifetime tenure. Federal judges are thus insulated both from popular opinion and, to some extent, from politics. That's all I meant.
Well, these distinctions are not all-or-nothing. A common way to further the independence of the judicial branch is to appoint judges for life. A judge that cannot be fired by the executive branch has less need to appease it.
I guess people feel the ability to vote out a judge balances versus the problems. It also probably keeps some flaky political appointees from becoming judges.
Just a clarification: federal judges (like the one in this article) are appointed by the President and confirmed by Congress. They are not elected and do not have constituents in the same way elected officials do.
Yes, because unaccountable lifelong appointed judges works so well in other spheres, yes?
Jefferson, Madison, at al feared the Judiciary for a reason. Particularly the Federal tier. Elected judges have a built in check in that they are subject to periodic reaffirmation of confidence from the populace. An appointed judge just needs the right connections once, and to not do anything on such a regular basis that they become the subject of an ethics investigation.
Explain to me how being appointed by someone makes you any less bias them being elected. Most states have non-partisan elections for Judges, only 18 allow then to run with a political party.
Federal Judges are appointed and about 90% of state judges are elected. There have only been 2 Federal judges that have been impeached since 1989.
That is just another part of the check. The executive nominates judges, legislative approves judges, judges then interpret. Ya, it isn’t perfect, but you still have a few judges (Kennedy before and Roberts now) who are independent enough to sometimes do the right thing against their ideology (judges are mostly independent after being approved, so influence is limited).
US greatly lacks that separation in between the executive branch and the judiciary for simple reasons:
1. Top tiers judges are nominated by the executive branch, there are no other way up there.
2. For a high tier judge in US, a promotion is effectively a political promotion
3. US law, as I know, has no provisions for disbarring a judge for bad judgement even if it is plainly going against the what is written in the code. Only gross miscarriage of justice (graft, proven act of conspiracy, and 3 or 4 violations of court procedures) allows for impeachment by congress
All of that makes appointing politically aligned judges too attractive for executive branch officials who want to extend their powers through them
You mean the power given to unelected departments like the FTC, FDA, etc that actually create regulations or the unelected judges with lifetime appointments or the unelected officials in the Department of Justice?
reply