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

FairOpinion ^ | Sept. 15, 2003 | FairOpinion

[LisaAnne]

Yes, I think you are quite right on that point.

[Spok]

"The founders never expected judges to wield as much power as they do, hence their positions being so safe from democratic interference."

That's because the founders never heard of a federal district court judge. The only court created by the Constitution is the Supreme Court-the rest were created by congress, and are technically known as statutory courts of "limited" jurisdiction. Yes, limited. Ironic, ain't it?

[Hildy]

Here's another silly question. We voted on this election machine crap two years ago. Why the hell does it take so long. Sorry, I forgot it's the government we're talking about.

[aristeides]

I haven't read through the whole Ninth Circus opinion yet, but it looks to me as if this complaint was made in Common Cause, et al., v. Jones, (C.D. Cal. 2002) (No. 01-03470), and decided by a settlement. The new Ninth Circus opinion looks as if it has to go through a lot of contortions to avoid the conclusion that the issue was res judicata decided by that case.

[Viva Le Dissention]

I see your point, and I often bring this up to so-called "textualists" to point out the absurdity of being a "pure" textualist.

But given the notes on the Federal Debates and what else I have read, I would have to respectfully disagree that the Founders did not intend to give the judiciary such power. Madison, the man whom you quoted, should be especially noteworthy, since he advocated giving the judiciary a MUCH stronger role in government; see especially the Notes on the Federal Debates for July 21. Madison was a proponent of the judiciary having a central policy role in the passage of legislation, issuance of advisory opinions, etc.

You make much of the fact that the const. does not specifically grant to the judiciary such power, and I agree, that is a solid fundamentalist argument. However, for instance, Art. I, Sec 8 doesn't give Congress the power to charter a national bank, but one of the first Congresses, many of the members of which were present at the constitutional convention, passed a bill establishing a national bank.

I think Jefferson's thoughts on the subject are relevant, and I think that he acknowledges that the judiciary has such power, but I think that he mis-states, slightly, in at least implying that no other branch has this power. Certainly the Congress can consider the constitutionality of a bill before it is passed, and the President can certainly veto a bill based on his perception that it is unconstitutional. It's just that the judiciary is the final stop on the journey, and rightly so, I think. There has to be a final arbiter somewhere, or otherwise the system breaks down. It just so happens that the judiciary is the most sensical place for the issues to come to rest.

As you noted, though, this is an essentially a moot question, since it is here, for better or for worse. I think, though, the notion of "judicial legislation" is much over-blown. Strict textualists simply don't, and can't, exist, otherwise the government would simply cease to function.

Even Jefferson, as strict a textualist as they came, signed off on the Louisiana purchase. Congress, of course, has no explicit textual authority to purchase land, but when push met shove, government has to work efficiently, and Napolean wouldn't have waited for Jefferson to pass a const. amend. So Jefferson signed off on it anyway, and I think rightly so. I know this departs from the "legislating from the bench" discussion, but I think it's relevant given much of the talk these days about "strict construction" and "textualism."

[Political Junkie Too]

Maybe it's time for Congress to use their constitutional powers to disband the 9th Circuit.

-PJ

[Common Tator]

Note also that the 9th has not imposed a remedy.

They did-- they ordered the recall postponed to March 2004, which is when the State was previously scheduled to have replaced all the punchcard machines.

Like a typical Libertarian you got it all wrong.

I am not sure libertarians can Read but you could try what I did... I read the decision. The 3 member panel voted to stay the vote on Oct 7th. And they voted to wait a week to execute the stay. They did not set a new date for it to be held. They held up the execution of the stay for a week so the supreme court could consider an appeal.

At this moment there is no stay in effect. The stay of the election will not be put in force until at least a week from now.

If the Supreme Court does not take the case away from them, they will issue stay for the recall next week, and then decide when to have the recall. The California Constitution says the vote MUST take place 80 days after the recall petitions are filed. If they stall until next spring, they can then declare the entire process NULL AND VOID. Since the election did not take place in the timely manner required by the California Constitution. Thus holding the election next spring is indeed unconstitutional.

They did not set a date so the 80 day limit would not be a matter before the Federal Supreme Court.

One of the most appealing things about Libertarians is they never check their facts.

[swilhelm73]

It seems to me in evaluating Madison, and Jefferson, the most important point is their reaction to the first use of judicial review and the first time the power was claimed by the courts.

I've given you a few quotes as to what they said about it, and perhaps more importantly, one should consider that M v M was specifically tailored to not go against Madison as Jefferson had stated they would ignore any such decision - essentially had Marshall ruled against them the it is almost certain the courts would never have been able to use the power of judicial review, as I've noted a power not given in the Constitution in the first place.

Further as to the notion that other examples of superceding the power given in the Constitution excuse this one, I don't buy it one bit. Again, a moot point, but a return to Constitutional government would be a godsend.

We now live in an era were the only check on the legislative branch is the courts, there are only a handful of checks on the presidency (executive orders ala Clinton's strike of the pen law of the land fame), and there is *no* check on the judicial branch - as R v W shows that in bold colors.

We do not live under a governmental system the founders would call their own. The current system is only partially democratic, thanks to the rogue judiciary and has barely any traces of federalism left. We live under the rule of men, not the rule of law, and far from taking 51% of the public to change our government fundamentally, the famed rule of the mob, it now takes only five *individuals*.

[Common Tator]

I haven't read through the whole Ninth Circus opinion yet, but it looks to me as if this complaint was made in Common cause.

I read the order and first part of the argument but ut not all of it. I was perhaps stupidly relying on a TV legal reporter for some of what I posted.

You know how you get to be a star legal reporter don't you? First you have to flunk out of law school!!!

[Viva Le Dissention]

I agree in that Federalism is a dead letter, and sadly so, but you can't seriously contend that a strict textual reading of the constitution is the right approach, do you?

I think the LA purchase is a great example. Napolean had Russians to kill and wasn't going to wait around the year or so it would have taken to pass a constituional amendment authorizing Congress to procure territory from foreign powers. France needed money and it needed it yesterday. So Jefferson was faced with a dilemma--obey the strict mandate of the constitution and don't make the purchase--which, obviously, was of vital national importance, doubling the size of the nation and opening up the Mississippi for exploration and commerce, or read an "expansive" view of the commerce power which allowed Congress to make the purchase.

I think he made the right decision, and I don't think there are too many people that would seriously contend that Jefferson shouldn't have done so.

So whatever the relative merits are of the 9th Cir.'s decision, of which I have no interest whatsoever, I think that there are relatively few examples of Court acting "out of control." I think most of the problem stemmed from the new deal legislation and we're stuck with it because it won't get overturned.

Which, actually, is a perfect example of why an "activist" court is necessary, and it didn't really strike me until just now as I was thinking about it. Since the New Deal, the S.Ct. has pretty much left the commerce power of Congress unchecked. Only recently has there between some teeny-tiny roll backs of Congress's commerce powers, but if those powers are combined with Congress's taxing and spending powers, Congress can essentially regulate any state issue it so chooses.

I think the inaction of the S.Ct. in striking down unconstitutional laws in the area of commerce power is the main reason that Federalism is a dead letter. If you look to the traditional police powers which were left to the States--health, welfare, safety, and morals, Congress now regulates all of this on a regular basis. It is the inaction of the Court--the decision of the Supreme Court to let Congress set its own constitutional limits--which has caused the problem. Left to its own devices, Congress will continue to do whatever it is that will get it votes, and that often includes infringing on state soverignty.

I think the "rogue judiciary" that you complain of isn't nearly as bad as you make it out to be. Leave Congress to its own devices, as the Court has when it comes to the commerce power, and the constitution gets destroyed. Only a court willing to actively strike down unconstitutional laws can be an effective safeguard to liberty and federalism.

[AdamSelene235]

Actually the judiciary was set up specifically to resist democratic governance by the mob.

Ayup.

It was designed to be independent

I disagree. The structure of the judiciary is quite dependent upon Congress. There is very little in the Constitution regarding its structure or nature. Hell, the Founding Lawyers didn't even specify the number of Supreme Court Justices.

Bottom line: There ain't no checks and balances. What possible motive would the judicial/executive/legislative branch have to limit the power of the government? They're all on the same team. The checks and balances crap is just grist for government school mill.

[DoctorZIn]

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[FairOpinion]

"If the Supreme Court does not take the case away from them, they will issue stay for the recall next week, and then decide when to have the recall. The California Constitution says the vote MUST take place 80 days after the recall petitions are filed. If they stall until next spring, they can then declare the entire process NULL AND VOID. Since the election did not take place in the timely manner required by the California Constitution. Thus holding the election next spring is indeed unconstitutional. "

===

Thanks for the explanation.

Good grief! So they may manage to totally thwarth the recall by their legal wranglings! Amazing!

I hope the Supreme Court will hear the appeal and voids their decision.

[Brilliant]

Since the punch card ballot is used in thousands of precincts nationwide, and can't be eliminated before the 2004 election much less the primaries, it will be necessary to cancel the 2004 Presidential election. Tough luck, nine dwarves.

[FairOpinion]

Since the punch card ballot is used in thousands of precincts nationwide, and can't be eliminated before the 2004 election much less the primaries, it will be necessary to cancel the 2004 Presidential election. Tough luck, nine dwarves.

Love it!!! Great idea! We'll have to sue to cancel the 2004 elections, and the one after that, and so one, make GW President for life -- just to make sure we don't disenfranchise all those poor minority voters who don't know how to punch a hole in a card. Sounds good to me. :)

[Congressman Billybob]

You, my friend, are sharp and accurate. Yes, I think this is what the case is all about. Maybe three times today has anyone mentioned on the news that there was this Consent Decree out there.

John / Billybob

[swilhelm73]

On the specifics of the LA purchase, Napoleon would have waited as long as America wanted. LA existed primarily to supply the French colony of Haiti, which the French had just lost to a revolt.

They couldn't send troops to NA because of their war with Britain, so they had a choice of selling it to America or losing it eventually to American or British military action. The sale made sense to America as the cost was a better deal then the cost of mobilizing the military, however. A delay, however, would have changed none of this.

That being said, the single best example of both the government ignoring the Constitution, and the rogue court at its worst is R v W, and the following abortion decisions.

Anyone who can read can clearly see the federal government has no power to overturn the abortion laws of the states - certainly not because seven tyrants see convient shadows in the Constitution.

So, we now basically have federal abortion laws that something like 90% of the populace disagrees with. The elites have managed to enforce their will on the populace, and rewrite the Constitution, and there is in reality next to nothing the majority can do. Perhaps the court should have gone by the name of the George the 3rd Court, it would have been more appropriate.

Governments are instituted among Men, deriving their just powers from the consent of the governed

We can see the courts continuing down this path with the recent sodomy decision (if only we had nine Clarence Thomases), and perhaps even stopping an election in CA for the sole purpose of keeping their man in power.

The courts are striving to become our masters, and we the people are generally allowing them to.

all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

One can hope that, finally, this particular ruling is a wake up call, though I am soundly pessimistic. Rule by judges is no different ultimately then the rule by nobles our ancestors fled and fought against. The left, being way outside of the views of the public, of course, is rather warm to this idea - and if we conservatives do nothing, one can be sure they will get their wish no matter how many elections we win.

The history of the present [judicial branch] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

I guess there is a reason the left continues to dumb down the schools. Those who fail to learn the lessons of history are bound to repeat them.

[swilhelm73]

An addendum...

The current system as I mentioned, and you did not address, has ended the idea of checks and balances, let alone limits on federal power.

No matter how unpopular, unconstitutional, or just plain wrong the decisions rendered by our judicial masters may be, there is, in reality, nothing that can be done about them. Jefferson's warning was, not surprisingly, prescient.

The legislature and executive branches are only slightly better off of course. The all powerful court maintains the right to overrule the democratic branches of government when it sees fit of course, but we can see how Clinton's executive orders, and the retroactive taxes of 93, both as unconstitutional as such can get, passed without any difficulty.

Restore the Constitution and restore balanced, limited government. Who would have thought the Constitution would be considered darkly revolutionary 200 years after its passage?

[justshutupandtakeit]

While the structure is dependent upon Congress, the personnel is independent. Life-time appointment during "good behavior" insures that independence from both Congress and the population. Number of justices has nothing to do with anything.

Court decisions have limited the power of government on many occasions not least was the ruling that the Income tax was unconstitutional. Why would a bunch of lackeys have done such a thing? And why would they have ruled Congressional acts unconstitutional with some regularity starting with Marbury v. Madison?

Hyperbole is not very effective when factual matters are concerned no matter how well it plays with the anti-government rubes.

[AmishDude]

Is there anything in the Constitution that requires Federal judges to be paid a salary?

Is there anything that prevents Congress from simply voting that judge X will cease receiving one?