Can Federal Judges Be Recalled? (ref: California 9th Circuit Court)

FairOpinion ^ | Sept. 15, 2003 | FairOpinion

[FairOpinion]

"The rationale of the 9th Circuit decision was that it violates equal protection to use punchcards in some counties but not in others. "

===

Isn't that exactly the way it was in Nov 2002 election? If it was good enough then, why isn't it good enough now?

[justshutupandtakeit]

The Florida decision was NOT about a "state election dispute." It was about a federal election and the interposition of the Florida SC where it (by the US constitution) had NO jurisdiction.

Nor was that the first example of the Supreme Court getting into election disputes.

[Let's Roll]

Not on punch card ballots ;-)

[MineralMan]

"Is there a law that would allow recall of Federal Judges?

If so, some of the Judges on the CA 9th Circuit Court really should be recalled.

"

No, Federal judges cannot be "recalled." They can be impeached and removed by the Congress, but that's not going to happen. They have rendered decisions that are unpopular with a lot of people, but that, in itself, is not cause for impeachment, I'm afraid.

This Congress is not going to start impeaching Federal judges. It's just not going to happen.

[Viva Le Dissention]

Decisions of judges should not be based on the political whim of the voting public; as such, judges are immune from the pressures of politics, and rightly so.

Despite the rantings of people on this website, including this thread, the judiciary is the weakest of the three branches, and the Founders rightly saw that when they drafted the constitution.

From Federalist 78:

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security...

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.



If you are interested in further reading, Federalist 78 addresses your question exactly on point.

[MineralMan]

"Why ARE judges appointed and NOT elected? They seem to wield so much power and yet are not chosen by Joe Voter at all but by the party in power! This seems very wrong to me!"

Uh, because that's what it says in the Constitution. You have read the Constitution, right?

[Melas]

Princess, we have 3 branches of government as most 6th graders learn. Two of these, congress and the executive are accountable to popular opinion. The third, the judiciary is not. The reason being is that the judiciary is supposed to stand as a check and balance against the mob rule the founders so feared. The senate was also supposed to stand against said populism, but that's already been changed. If the judiciary follows the way of the senate, we might as well give up on calling ourselves a Republic and call ourselves a Democracy.

[RonDog]

"...Note also that the 9th has not imposed a remedy. Thus the supreme court must over rule its basis for ruling for Bush in 2000 in order to rule against the 9th in this case. If the 9th had imposed a remedy the Supremes could overturn the remedy with out overturing the other issues.

This ploy puts the supremes in a strange place. They know that if they overrule the 9th they will be charged with rulling one way for Bush and the opposite way for Davis on the very same issue. The national media would have a fun time with that.

It will be interesting to see what happens. Perhaps the supremes will not take the case, but rule it will get in the game if the remedy does not suit them..." - Common Tator

Ping for YOUR opinion, Congressman Billybob.

[Congressman Billybob]

I deeply respect Common Tator, and generally agree with him. But not on this point. The Ninth HAS issued an Order granting relief. The fact that it stayed its own Order for seven days to allow for an appeal does not defeat the ability to take an appeal.

This is a common procedure for lower courts, to stay their own Orders pending appeal. When the lower court does this, it NEVER inhibits the ability to take the appeal. That's black letter law that's been often tested and upheld. Ain't gonna change in this case.

John / Billybob

[swilhelm73]

The judiciary was *never* intended to have the power it has today in the founders' vision. The SC did not even have the power of judicial review until 1805(?) in when they took the power in the famous Marbury decision.

That led to some dire warnings by a number of the founders - most notably Jefferson, obviously. Overall, the power of judicial review is fine when the judges confine themselves to the plain meaning of the Constitution. In theory, all branches of the government should consider the constitutionality of their actions before proceeding with them - but a court strictly empowered to voice what the Constitution says can act as a check on the other branches.

However, the power of judicial legislation, courts acting as a super legislative (and occasionally executive) branch, is something really only a few decades old, and fundamentally different from judicial review.

The founders did indeed insert a number of mechanisms to make it require more then a simple democratic majority to enact major changes in the country - the indirect election of senators, the electoral college, the federal system, and the supremacy of a written, easily understood Constitution.

The current judicial power grab was not only not part of this system, putting the rule of law over the rule of individual men, it is in fact its antithesis. The courts now rule either in favor of what they view to be the popular will, their own prejudices, and, amazingly, sometimes following the lead of foreign countries.

The judicial legislators have made the nightmare of the founders come somewhat true - unaccountable, local tyrants who have assumed the power to change the law at will.

"Which is better - to be ruled by one tyrant three thousand miles away or by three thousand tyrants one mile away?", warned one loyalist, and now our judicial masters are trying their best to make this warning our new system of government...

[Viva Le Dissention]

I'm not sure I understand what you're saying--are you saying that the Founders didn't intend the judicary to have the power of judicial review?

Again, Federalist 78 is relevant.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

While it's true that the Court never exercised this power until 1803, and even then sparingly after, I think it was always in the view of the Founders that the Court would be the logical branch to resolve constitutional disputes.

[FairOpinion]

ping

[LisaAnne]

Thanks for the ping.
It's my understanding that these appointed judges on the 9th circuit can only be impeached, not recalled

[Viva Le Dissention]

The July 21 notes on the Federal Debates also provide some interesting insight into the role of the judiciary in the minds of the Founders.

There was a good deal of debate as to whether the judiciary would have a greater role in the determination of national policy (which, incidentally, Madison favored), which would have been a stronger check on Congress. Instead, it was presumed that the current model would be an accurate check to the legislature, which I think a fair reading must presume, in the minds of the Founders, that the judiciary would have some power to declare laws unconstitutional.

[Boatlawyer]

It's been awhile since I read the decision, but I seem to remember them acknowledging that election laws are determined and applied by each state, except when it's a presidential election. I don't remember a lot of due process/equal protection discussion (which is what I thought they could have rested on). I was glad they made the decision they did, but have been concerned about the consequences.

If Supremes want to kill this sort of thing, they can decline jurisdiction based on their previous holding which was limited to national presidential elections. That would also invalidate 9th Circ. decision.

[FairOpinion]

And Congress has to do the impeaching, which isn't going to happen.

[Boatlawyer]

IF Supremes hear it, I believe they'll hinge any reversal on lack of jurisdiction and use narrow holding in Bush v. Gore (that fed courts have no place in state elections unless presidential), which will not require them to overrule their previous holding.

[swilhelm73]

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson 1815

"The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." --Thomas Jefferson 1804

"In a government whose vital principle is responsibility, it never will be allowed that the Legislative and Executive Departments should be compleatly subjected to the Judiciary, in which that characteristic feature is so faintly seen." -- James Madison 1809

While Hamilton, the writer you are quoting, favored judicial review, the founders as a whole did *not*. Most notably, see the quotes above from two of the principals in the writing of the DOI and Constitution respectively.

Perhaps most importantly, you will note the Constitution is silent in listing such a power, most notably;

"Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. " -- Article III, US Constitution

And on Marbury v Madison;

"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since." -- Melvin I. Urofsky

Now, in some ways this is a moot point - I don't have much of a problem with true judicial review, as I noted earlier, and it survived as the judicial paradigm for the most part for about 150 years or so (one can find limited examples of judicial legislation in the period right before the CW though too).

However, I make this point specifically because the left uses judicial review - a power not granted in the Constitution, but one that can work within in it - to make the bridge to judicial legislation.

[Common Tator]

Isn't that exactly the way it was in Nov 2002 election? If it was good enough then, why isn't it good enough now?

No one brought a case in 2002. Courts can't insert themselves insituations just because they want to do so. If no one claimed they were harmed by the 2002 election situation there was nothing the court could do about it.

In this case the ACLU brought the case. I was argueing this would happen in June. Now it has.

[alrea]

Why is the party protecting Davis ??

Sending Sink Clinton to a black church is their "big gun."

They must be worried.