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Judicial Power as a Campaign Issue

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Adam Liptak and Michael Shear have this article in the NYT about the federal judiciary as an issue in the presidential campaign.

Denunciation of judicial overreach is, of course, a grand tradition in the Grand Old Party.*  The party's very first successful presidential candidate made attack on a Supreme Court decision a major theme of his campaign.  Denouncing that decision was controversial at the time, but nearly everyone today agrees he was correct.

Liptak and Shear report:

Gov. Rick Perry of Texas favors term limits for Supreme Court justices. Representatives Michele Bachmann of Minnesota and Ron Paul of Texas say they would forbid the court from deciding cases concerning same-sex marriage. Newt Gingrich, the former House speaker, and former Senator Rick Santorum of Pennsylvania want to abolish the United States Court of Appeals for the Ninth Circuit, calling it a "rogue" court that is "consistently radical."
I don't know if I agree with the term limit idea.  Term limits for executives have been a good thing, but term limits for legislators have not worked out as well as expected.  Would the Supreme Court be better today if we had had term limits since the 1950s?  Hard to say.

A better reform would be California-style retention elections.  Once every 12 years, appellate judges stand for a yes/no confirmation vote.  This system provides almost-life tenure.  Only once since the system was instituted have California Supreme Court justices been denied retention, and that was exactly when they should have been.  Three members of the notorious, activist Bird Court were tossed in 1986, and the court has been vastly improved since then.

Use of Congress's power to limit jurisdiction is always controversial, particularly when it is targeted to a specific issue rather than a whole class of cases.  However, limits have been upheld to date.  A long-standing prohibition against challenging state taxes in the lower federal courts is not doubted today.  State-court review with certiorari to the Supreme Court is all you get.  A limit that removed an issue from any judicial review at all would be more problematic.

Gingrich and Santorum are clearly correct that the Notorious Ninth is a "rogue" court.  Abolishing it is a nonstarter, however.  Where would all those federal criminal convictions be appealed?  Abolishing appeal might be constitutional, but it's not going to pass (and shouldn't).  The Supreme Court obviously couldn't handle them all. 

This idea isn't any better:

"Congress can say, 'All right, in the future, the Ninth Circuit can meet, but it will have no clerks,' " Mr. Gingrich told the Values Voter Summit.  " 'By the way, we aren't going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don't seem to need your law library, either.' "

We could, however, deal with excessive meddling in state government by lower federal courts with some clearly constitutional adjustments to jurisdiction.  First, limit federal habeas review of state criminal judgments to issues having some bearing on the reliability of the guilt verdict.  (This is a variant on Judge Friendly's 1970 proposal and an extension of Stone v. Powell.)  Second, extend the anti-injunction provision presently applicable to state taxes to all claims that a state statute is unconstitutional.  Let the state courts handle the bulk of these claims, and let the U.S. Supreme Court correct the few cases where the state courts get it clearly wrong.

On the whole, it is a good thing that the federal judiciary is getting campaign attention.  There are some real problems that need fixing.  One of the greatest disappointments in the Bush Administration is that they didn't think that fixing the Ninth was a priority.  Vacancies were left at the end of the term, and the appointments that were made were a mixed bag.  Let us hope our next President puts a higher priority on fixing what is wrong.

* Update:  In the spirit of bipartisanship, I should note that the first President from what is now the Democratic Party had issues with judicial overreach as well.

"The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."  -- Thomas Jefferson, Letter to Judge Spencer Roane, Sept. 6, 1819.

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