[vbmoneyspender]

Our federal judges have been impinging on the power of the legislature for years. The Schiavo case was a direct example of that and Krauthammer is simply incorrect with respect to his discussion of that case. Delay is furious and rightly so that the federal judiciary refused to review the Schiavo matter on de novo basis. Instead, the federal trial judge held a hearing on the injunction issue on one day's notice (which is a due process violation right there) and then had that ridiculous ruling upheld on appeal. That process directly violated both the letter and the spirt of the law that Congress passed and I don't blame people for throwing up their hands in disgust at the result.

The problem with federal judges is that they are appointed for life. Appointing someone to a position for life necessarily breeds arrorgance. With federal judges it is called the God disease. And it is no accident that many judges have gotten to the point that they think they are accountable to no one. Krauthammer has completely ignored this issue. But it is at the heart of the problem with the judiciary.

Simply put, the judiciary is the most dangerous branch of the gov't. This is so because once you get judges in power who believe they can simply decree things whether or not they are found in the law, then horrible results start to occur. Never forget that it was the Supreme Court that brought on the Civil War with its Dred Scott decision. And it was the Supreme Court that guaranteed Jim Crow would continue to exist for decades with the Plessy v. Ferguson decision. And it was the Supreme Court in the Korematsu decision that had the final word on putting thousands of American citizens in detention And finally, it was the Supreme Court that completely bypassed the leglislative process and the Constitution when it handed down Roe v. Wade.

So when Krauthammer says that the solution to the broken judiciary is to appoint good judges, he is wrong. Activism on the federal bench will continue (be it left-wing activism or right-wing activism) as long as judges are appointed for life.

[lugsoul]

"Never forget that it was the Supreme Court that brought on the Civil War with its Dred Scott decision. And it was the Supreme Court that guaranteed Jim Crow would continue to exist for decades with the Plessy v. Ferguson decision. And it was the Supreme Court in the Korematsu decision that had the final word on putting thousands of American citizens in detention"

That's interesting - each of your examples involves a situation where the SC failed to stop the actions of other branches or subdivisions of government. Sounds like an arguement in favor of judicial activism.

[JBW]

Thank you for your interesting comments.

You are certainly correct to note that lifetime tenure (in the judiciary or any other undertaking for that matter) breeds a certain amount of arrogance. We've certainly seen that arrogance in the past few decades as some judges have substituted their own personal views for Constitutional requirements.

On the other hand, the Constitution contemplates lifetime tenure for judges and the Founding Fathers intended to insulate the federal judiciary from the stresses of politics. The Founders intended judges to take a 'long view' so that they could resist the majority when the majority overstepped the Constitution. Our history is full of examples where courageous judges took the 'right' position, despite the will of the majority, only to be vindicated in later years.

The difficult and decisive question (for which I have no ready answer) is where to draw the line between (a) the kind of arrogance that the Founders anticipated when they created a system of lifetime judicial tenure versus (b) the kind of judicial overreaching that rises to the level of an impeachable offense.

It seems that judicial opinions that are simply wrong or bad should not be impeachable, or else judges would spend all their time defending controversial decisions against an unhappy majority.

And yet there should be some line of demarcation beyond which judges should not venture for fear of impeachment.

By what standard or line of analysis would we draw this line?

[Ditto]

Our federal judges have been impinging on the power of the legislature for years.

I see it differently. The legislative branch has shirked its duty by avoiding "controversial" issues. That has created vacuums in the law that judges are filling. I blame Congress.