Many of those on the right are quite fond of criticizing “unelected federal judges” who issue rulings that go against their world view.
What, then, is their alternative? Do they want to elect those who sit on the federal bench? Do they wish to do away with the federal judiciary?
I mention this because the U.S. Supreme Court recently upheld a University of Michigan policy that disallows affirmative action practices when considering who the school should admit. Did those on the left issue similar cries against those “unelected judges”? I didn’t hear any.
And yet, when judges keep striking down states’ bans on same-sex marriage, the cries go out from those who think the federal judiciary is overreaching when it declares states cannot write laws that violate U.S. constitutional provisions, such as the one that provides for “equal protection” under the law, regardless of sexual orientation.
Perhaps my favorite criticism of the high court came when it ruled 5-4 to uphold the Affordable Care Act. The ruling was narrowly defined and it was decided by a single vote, when Chief Justice John Roberts voted with the majority to keep the ACA intact. The criticism — from the right, of course — went something like this: The law should be tossed out because a narrow majority on the Supreme Court voted to keep it, and that the one-vote majority really didn’t mean the law is constitutional.
The founders had it exactly right when they empowered the president with the authority to appoint judges to the bench for life. They sought to de-politicize the federal bench by disallowing the election of federal judges.
States, of course, retain the right to elect judges. Texas even elects judges on partisan ballots, meaning that judicial candidates of one party has a built-in advantage over candidates of the other party. In Texas, that means if you’re a Republican, you’re in; it used to be the other way around, when Democrats were dominant.
Either way, good judges from the “out” party are kicked out simply because they are of the wrong political persuasion.
The federal judiciary, from the Supreme Court on down, functions precisely as the framers intended for it.