Congressman Billybob: Thank you for writing and presenting this excellent and well thought out speech.
While I generally agree with the pretext of your speech, that there is a serious problem with our judiciary, I must disagree with your conclusions. I agree that we are in desperate need of change in the judicial...that is to say...unelected branch of government. The problem is that your solutions are well, fairly timid. And in the long run will merely nibble at the margins of the problem rather than correcting it.
I think that changing the cast on the SCOTUS, while positive, ignores the bigger problem: the unelected nature of the court and it's ability to effectively dictate from the bench. Changing the make-up of the bench, while palliative, does nothing to cure the underlying problem. Yes, we might end up with some better judges who might act with more restraint. But what then? What happens when they retire or pass away? What happens when one or more of those "better" justices decide that they really like the trappings of power?
I think we need to start taking a closer look at what justices are allowed to do, how they are appointed, and how long they should be in office.
I hear a lot of talk on FR about separate and co-equal branches of government. What I'm not so sure about is whether that's really what was intended from the beginning, or whether that's even a good thing. Keep in mind that the judicial branch is not elected. I would hope that a branch of government that is unelected and almost completely unaccountable to the people would be subordinate to, not equal to the other branches of government. How ironic then that this unelected branch of government has, over time, become supreme over the other two elected branches. Ironic, but also predictable. You draw the analogy of children with matches. If we give children a warehouse full of matches, can we be all that shocked when sooner or later a group of them starts a fire?
Since time for me this morning is short, I need to conclude my thoughts sooner than I'd like. Some ideas to think about.
1. You come from a legal background and are thus taught to respect the law, the institutions that make them, and those which interpret them. I come from a political background. Are judges objective referees of the law? Or unelected politicians with lifetime sinecure?
2. Marbury vs Madison. An oft quoted case that is the bedrock of judicial review in the U.S. But viewed from a political/power context, what was it?
3. There is a lot of complaining of late about the judiciary from conservative political leaders. But I've noticed that despite the complaints, we still see laws of questionable constitutionality being passed by the legislative branch and signed into law by the executive. Despite excesses on the part of the judiciary over many years, changes to the law regarding what the judiciary can review and movement toward reining in the judiciary seem to be just a little too hard to actually do. A skeptical individual might ask the question: "who benefits?"