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Romney and Judicial Nominations

Jerry Markon and Alice Crites have this article in the WaPo on Mitt Romney's record on judicial appointments as Governor of Massachusetts.  Romney came into office believing that an independent judicial screening commission was the way to clean up the appointment process, but he later changed his mind.

In my view, that is a case of learning the hard way that proposed reforms are not always all they are cracked up to be.  In fact, they rarely are.  "Independent" nominating commissions are a failed model.  They typically result in a transfer of nominating power from elected officials to whoever chooses the commission, which all too often means bar organizations.  Instead of eliminating politics, it substitutes bar politics for general politics.  Bar politics is the worse of the two by far, as the general public has no say in the process.

The other big problem is judicial activism -- the tendency of courts to usurp to themselves decisions that the constitution actually vests in the elected branches.  The bar loves judicial activism.  It makes the legal profession enormously powerful relative to everyone else.  The more influence the bar has on judicial selection, the more judicial activists you are going to get.   Legal academics love activism too.  Courts pay a lot more attention to what they think than legislatures do.

It is, of course, a natural human tendency for government officials of all types to interpret vague boundaries in a way that expands their own turf.  Judges sometimes drift to a more activist view of the role of the judiciary and rarely drift the other direction.  To counteract this tendency, appointing authorities need to constantly use the appointment power to steer the judiciary away from activism.  It is like driving a car with misaligned wheels.  It naturally veers to one side, so the driver must apply constant pressure to the steering wheel in the other direction to keep it going straight.  Failure to do that, so that the car runs off the constitutional road, is dereliction of duty.  A commission that nominates the candidates the organized bar and academics rate highly is not going to apply the needed correction.

It appears Mitt Romney has learned this lesson, and I am very glad to know that.

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