Professor Richard Hasen and Dahlia Lithwick are right on state judicial election ads but a similar and more serious problem lurks for the Supreme Court (and possibly the rest of the federal judiciary)

Last Wednesday, I posted a video of a mock ad for a judge that ridiculed advertising for judges who run for elections. It was funny. But, as the real ads become more and more numerous, misleading, vicious, and explicitly partisan, there is a serious consequence to judicial advertising. The public begins to see judges as nothing more than politicians in black dresses.

Thus, I couldn’t agree more with the thrust of Professor Hasen and Ms. Lithwick’s Slate article entitled Lousy Judgment, This year’s scary election ads will destroy any lingering confidence in the judicial branch (October 31, 2014).* As the authors state, “the real effect of these increasingly nasty ads, and the fundraising demands that come along with responding to these increasingly nasty ads, is an aggregate loss of confidence in the capacity of the judicial branch to be fair and unbiased.”

What frightens me even more than these angry, inane, uninformative, untrue and, yes, scary ads for state judicial officers is the ill-conceived notion that we ought to do away with lifetime appointments to the Supreme Court and instead adopt a system of term limits for the Justices. If we fear the explicitly partisan judicial jousting in some of our states, we ought to be terrified at the idea of nationalizing this idea for the Supreme Court.

One of the most “popular” term limits proposals, at least among the elites, would limit the Justices’ active service to 18-year terms so that a new member would be nominated in each odd year, giving presidents 2 nominees for each 4-year executive term.  That is exactly what we don’t need if we care about the public’s confidence in the Court.**

We don’t need a hyper-partisan confirmation fight of monumental proportions every two years driven by the President’s “right” to select his or her “own” to serve on the Court. At the level of the Supreme Court and throughout the nation, the adoption of such a proposal would finally put a stake through the heart of the principle that law is not politics by another name.***

As Professor Thomas W. Merrill, the Charles Evan Hughes Professor of Law at the Columbia Law School, has said, “Term limits would recast the role of the court to reflect presidents’ political views, not the more subtle role prescribed in the Constitution.” In other words, term limits would likely erode public perceptions (even more) of the Supreme Court’s legitimacy by associating justices more closely with the outcome of contested elections for the president. I hope that does not come to pass. The consequences are scary.



*The irony of my agreement with Professor Hasen and Ms. Lithwick will not be lost on those who read this blog regularly.

**The idea would surely “trickle down” to the lower federal courts. For example: “There is something more required for federal district judges. Similar term limits and no-confidence votes by the state legislatures in their districts would likely help a lot. Perhaps having the nominees approved by state legislatures in their district rather than the Senate would be a good idea.” aurorawatcherak, Reforming the SCOTUS  (April 1, 2014). Indeed, Linda Greenhouse, who is many things but not a nut, explicitly calls for the adoption of a Constitutional amendment of Article III that would apply to the lower courts. The amendment she endorses reads this way: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour for a non-renewable term of 18 years, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” At nearly 68, and on senior status, they can’t get me.  Except for my love of the federal judiciary, I have no personal interest in these matters.

***Maybe this is not a principle but rather a pretense. If that is true, it was not always so and one can hope that the principle is restored in the future. Moreover, even it is and will always remain a pretense, it is a pretense worth preserving. Sometimes, pretenses serve to constrain the behaviors of even the most strong-willed and potentially partisan among the judiciary. I know that from personal experience.

49 responses

  1. Mister Dooley said that the Constitution may not follow the flag but the Supreme Court follows the election returns. Fred Roddel a rather eccentric Yale prof amended it to read but the elections were long ago. We now have a SCOTUS majority that wants to reverse every POTUS election between 1932 and 1968,and also the last two. Of course in the v30s it was an old regime of substantive economic due process and narrow reading of the Commerce Clause that was dismanteled. The myth of the non political SCOTUS was maintained by the almost total ignorance of Constitutional history on the part of most folks, the tradition of big tent non ideological political parties, and the mostly boring things the SCOTUS does, which kept most people from noticing the Court.. The parties are in an alinement that causes the activities of the Court to mirror partisan divisions. I am afraid the myth is dead. I am not sure the admission of myth will fix things and I am not sure leaving things as is will work. That is the sad condition of a non elite non Art. III resident of flyover country. We need a remember John Johnson Parker day to remind us of constitutional history.

  2. I have always been mystified why more states are not like Nebraska with the “Missouri” plan regarding state judges.

    The rest of the country needs to admit it: The Nebraska way is the best way!

  3. Dear repenting lawyer,

    I hope you are wrong, but I fear you are right. The death of this myth, if it has come to pass, is a sad thing to watch particularly when the myth has served us so well for so long.

    All the best.


  4. Unfortunately there is a move to sponsor no votes if the judges were appointed by a D gov. and the current gov is an R. Tried in Tenn. earlier this year but R gov opposed as improper, now being tried in Kan to give Brownbacl 3 lame duck appointment. There was also the single issue 3 judges in Iowa, and in Ne, one. Started in Cal supposedly over death penalty, mostly after CJ but insurance companies got involved about 2 others they viewed as pro plaintiff with ads linking them to CJ. Still MO plan seems better.

  5. Odd that we seem to be losing faith in judicial review when it has become so widespread. Can and Australia have always had but without a Bill of Rights, now with the Charter SCCAN is much more active and the Court is more controversial. In UK domestication of ECHR by Human Rights Act has produced judicial review from Strasbourg and UK S CT. Gov is talking about repealing Act and adopting a bill of rights with withdrawal from Convention if UK renegotiates relations with EU. AMB was right about delicacy of faith in judiciary.

  6. Primarily, because it doesn’t work. You don’t get better judges. You don’t get even marginally accountable judges. And you certainly don’t get more honest judges.

    Even Missouri was thinking of abandoning the Missouri Plan.

    The best way is the French way. There, judges are chosen by competitive examination, rising on the basis of merit. Here, they are almost all political flacks. Bush #41 was the last President who put merit ahead of loyalty, but that will never happen again in our lifetimes.

    The worst way is the federal system. Political hacks are chosen and often, on the basis of gender and/or ethnicity. None of the actual vetting is done in the sunshine. Once they infest the bench, the hacks basically do what they were chosen to do, and unless they are caught in bed with a dead girl or a live boy, you can’t get them out of office. Even senility can’t stop them.

  7. Bork called it “the American disease.” Once you let the camel’s nose into the tent, the whole camel comes in. Judges (conveniently) forget that their job is to interpret the law, not write it.

    Australia has an unwritten Bill of Rights; we have an unenforceable one. Which do you prefer, RL? I’d prefer parliamentary supremacy to judicial supremacy, because I can vote the ruling Party out. When a judge knows that he has to answer to someone, he is a far better judge.

  8. Perfesser It appears your definition of a hack is someone who writes opinions you disagree> I have tried hard to discover what your merits are which make your views on law normative. I have far. Fewer adjectives and more legal argument would help.
    Most civil law countries use career judges but the inquisitorial system makes comparisons difficult. Are you as contemptuous of English, Canadian, or Australian judge or the judges of the Irish Republic who are selected by methods very similar to our federal judge.

  9. RGK: ” The public begins to see judges as nothing more than politicians in black dresses.”

    The few of us who have been paying attention have always known that to be true, more or less. Summarizing one of Posner’s tomes, Judge Sutton of the Sixth writes:

    Throughout the book, Posner talks about the political nature of judging and, most unabashedly, about the political nature of judging at the United States Supreme Court. Consider: “judging is ‘political’ ” (p. 369); “[e]vidence of the powerful influence of politics on constitutional adjudication in the Supreme Court lies everywhere at hand” (pp. 277–78); “the reasons for the legislative character of much American judging lie so deep in our political and legal systems and our culture that no feasible reforms could alter it” (p. 15); “judicial philosophies have little causal efficacy. They do not weaken the force of political preferences” (p. 346); “[j]udges like to refer to [the other two branches] as the ‘political branches,’ as if the federal judiciary itself were not a politically powerful branch of government” (p. 287); “[e]ven if judges wanted to forswear any legislative, any political, role and be merely the ‘oracles’ of the law, transmitting directives rather than directing, they could not do so in the conditions in which they find themselves” (p. 372); and “a more illuminating description of the Justices of the U.S. Supreme Court, particularly when they are deciding issues of constitutional law, is that they are political judges” (p. 269).

    Click to access sutton.pdf

    Politics and self-interest poison every aspect of the federal system. It used to be that the only time you caught an appellate judge suffering from the presumptive mental lapse called “candor” was when he wrote an angry dissent. No one writes dissents any more, because the judges are too damn lazy to read the briefs to begin with.

    You seem upset that the public at large finally knows what we know. Shouldn’t we be more upset that it is the truth the public is finally being let in on?

  10. Australia has a written Constitution and no bill of rights, the absence is a continuing issue in Australian legal scholarship. Courts have been active in judicial review on structural constitutional issues..
    I am not a Bork fan, anyone who could turner Senator Sherman into a neoclassical economist has too much imagination to lecture on interpretation versus making.. In my experience talk of interpretation versus making of law by judges just does not mean more than my side lost, usually conjoined to an astounding lack of legal knowledge.
    I can hardly keep track of the people we already vote on . can not see the quality of the our elected officials that inspirational.

  11. I suspect what Posner wrote was defensible even when Uncle George appointed Bushrod and has been true but exaggerated ever since..

  12. Judge:
    IMHO, judges should be appointed, not elected. The appointive system may be imperfect but, as between it and election, the former is demonstrably superior. If this is so then why do many states elect some or all of their judges (and why, as per this blog entry, is there a discussion of possible term limits for federal judges?)? My guess is that the public believes it needs a “check” on those who hold judicial office. But, whether that is right or wrong, such a thing plays directly into the hands of political leaders and various monied interests. That leaves aside the real issue: how do we get and keep the most qualified people on the Bench? Perhaps the Missouri Plan is the best we can hope to achieve in this regard.

  13. RL: “Perfesser It appears your definition of a hack is someone who writes opinions you disagree”

    Cheap shot. RL. I’m afraid that you must have me confused with Phyllis Schlafly. 🙂

    In terms of “the process,” I agree with Posner and Kozinski: Judges generally decide who they want to win or what rule of law they want, and work backward to the case. I agree with Posner and Llewellyn that they are not always particularly honest about it. And I agree with Madison that there is one and only one technically correct way to interpret the Constitution: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone is it the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.” A judge-made Austinian “constitution” is no constitution at all.

    Sometimes, the Constitution yields an answer you don’t like. As long as the process remains sound and transparent, I am content with that.

    RL: “Are you as contemptuous of English, Canadian, or Australian judge[s]”

    My contempt is focused on a judicial system that has interpreted an and all of the Framers’ accountability mechanisms into oblivion by self-serving judges. It doesn’t take an uncommon level of skill to be a federal appellate judge, as most appeals are currently decided by clerks, and if we really wanted to save money, we could farm that out to India. We’d probably get higher-quality appellate jurisprudence! If those accountability mechanisms were still in place, we could hire all the mediocre flacks we wanted (and we’d probably get better talent, as most of the really good candidates aren’t so hyper-partisan), and still have a decent quality of jurisprudence.

    Imagine Alex Kozinski, Richard Posner, and Richard Arnold on the Supreme Court. Under our politically-contaminated system, that is not possible. As a rule, the less political the selection process is and the more accountable judges are, the better your judges turn out to be.

    England and Australia still entitle the citizen to remove a judge who enjoys good behavior tenure for cause. Furthermore, the Commonwealth permits private criminal prosecutions. Parliament can still remove a judge by address (and technically, for any reason or none at all), so there is accountability in the system. Canada does a better job than we do, as there are less-drastic statutory mechanisms for removing judges which have supplanted the common law system, and they have tried to remove the vetting process from legislative controls. (I’m not as familiar with Ireland’s system, and can’t offer an informed opinion.) The ancient accountability mechanisms may have fallen into desuetude, but they are still available throughout the Commonwealth.

  14. I don’t care how they are chosen, as long as they are accountable for their actions. I am not aware of any evidence establishing that the Missouri Plan yields better judges, and suspect that the opposite is true.

  15. Australia is a party to the ICCPR, which, in conjunction with the common law, seems to serve as a functional substitute. Australia has its own Rule of Charming Betsy, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 287-88 (H.C.), and is a party to the Vienna Convention on the Law of Treaties (treaty is supreme law of the land).

    As Canada learned the hard way, with a bill of rights comes judicial supremacy. Maybe they should leave well enough alone. Or maybe we could lend them ours — Lord knows, it ain’t of much use here.

  16. Perfesser My point on hack was you make t the condemnation without evidence, so the term merely expresses your own taste. I think your list of writers of a realistic caste quite good but misleading, that there are open questions and alternative answers in some cases does not turn judicial choice into arbitrary choice and the openness is closeted by the legal tradition. Madison hardly says that all of the Constitution leads to undeniable right answers and in other places he takes a rather developmental view of Constitution, which is why each party in Constitutional theory has a favorite Madison quote. On the other hand the protection of judicial independence absent impeachment and removal does seem clear, and given it is the only method mentioned exclusivity is a reasonable reading. In the States the matter is of course variable as the case involving the Michigan judge you have cited demonstrates. Computer pornography may also be different given that PA S Ct judge seems to have shared Judge K’s taste though othe other issues are involved

  17. Judges have only themselves to blame for its passing. The cumulative effect of too many comical and flagrantly self-interested decisions has hardened the public’s arteries. This coronary was inevitable.

    The solution — that judges start doing their jobs, and “coloring within the lines” — is unthinkable.

  18. RL, your conclusion regarding the exclusivity of impeachment is irreconcilable with the plain text of the Constitution. After all, if impeachment was the only intended remedy for acts of judicial malfeasance, why do we even have a good behavior clause? The argument you advance is not only not “reasonable,” but as CJ Marshall adeptly reasoned in Marbury v. Madison (“it cannot be presumed that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it”), borders on the inane.

    Kindly explain to the rest of us why Marshall is so spectacularly wrong here.

    It does not logically follow that judicial independence from undue influences from other branches of the government would equate to independence from any controls whatsoever. Good behavior tenure means that judges are accountable to their real bosses — the people — in every single case. If a judge displays tyrannical partiality, he should be removed from the bench, and held liable in tort for his acts. That was the rule in King Hammurabi’s courts, and it defies all reason to suggest that the Framers would grant judges the tyrannical and uncontrollable power your conclusion would necessarily bestow.

    I don’t think anyone would dispute that there is a class of cases in which judicial choice does not constitute judicial fiat, but that does not discount the fact that there is a disturbingly large class of cases in which judicial choice is compelling evidence that it is judicial fiat. Even fellow judges tell us that. “To deny the facts,” said Spock, “is illogical.”

  19. Exaggeration? I would argue that it is an understatement. While the decisions themselves generally appear reasonable on their face, when you compare the decisions with the parties’ briefs, “WTF? moments” are the norm. The modern appellate judge scarcely bothers to hide the fact that the decisions “delivered” are often mere outcome-driven rationalizations.

  20. I don’t know that driving a stake through the heart of the rotting corpse of the rule of law, defiled for so long, so overtly, and so egregiously by our self-appointed Platonic Guardians in black dresses, would serve as anything more than provide a belated and proper burial.

    Trying to convince the people that judges are honest and dedicated servants of the law is like trying to convince a skeptical seven-year-old that Santa is real. It “taxes the credulity of the credulous.” Facts matter. Even laymen have eyes. The legitimacy of our courts is gone; that horse left the barn a long time ago.

    Should we do away with lifetime appointments for judges? Yes. If all we are doing is electing proxies for the two competing factions — and at this point, it is well-nigh impossible to argue otherwise — then we should be adult enough to admit that they are proxies, and limit the damage these proxies can do. Anyone who childishly believes that they still have rights under law has never tried to enforce them in front of a hostile judge.

    The “law” has become so uncertain that we could scrap the judiciary altogether, and let juries decide what the law is going to be on any given day. At least, juries would be fair.

  21. Dear Perfesser,

    For the moment, I accept your supposition that there is no evidence establishing that the Missouri Plan yields better judges. Assume with me for the moment that state judges are roughly all of the same caliber no matter how they are selected.

    Tell me this: Do you think the public’s confidence in elected judges is furthered by the explicitly partisan, and often misleading, advertising we are seeing, particularly understanding that in order to compete those judges must raise a lot of money to fund their advertising?

    All the best.


  22. Curmudgeon,

    Forgive me, but you piss me off. You write: “Trying to convince the people that judges are honest and dedicated servants of the law is like trying to convince a skeptical seven-year-old that Santa is real.”

    Upon what basis do you make the assertion that all or most judges are dishonest and not dedicated to public service? I want evidence, bud. Not just a rant.

    Put up or shut up.

    All the best.


  23. Curmudgeon, I think you make a good case for some types of discipline other than impeachment and removal using the style of argument that is con law. However in the process you rather demolish the pure text position. I r doubt that the Founders had your idea in mind, there were not going to be enough judges for them to see our problem and until Chase impeachment and its rejection by the Senate impeachment was seen by many as the remedy for bad behavior.. Living with the Constitution and changes in the Country make an argument not really from the pure text but not detached from it either.
    I am not sure the number of cases that are pure fiat is larger now than in the past but the complaints have a larger audience and judges are more candid.

  24. If I had to make the case in full, I would need not just my own blog, but a publishing contract.

  25. I would maintain that the people should place no confidence in their judges, a priori. That they should trust no one with power, whether it be the cop on the street or the President. In the immortal words of Ronald Reagan, “Trust, but verify.”

    The way a judge earns public trust is through a transparent process, resulting in a sound written opinion. Thomas Jefferson explained it so eloquently that I can’t improve on it:

    I must comfort myself with the hope that the judges will see the importance and the duty of giving their country the only evidence they can give of fidelity to its Constitution and integrity in the administration of its laws; that is to say, by everyone’s giving his opinion seriatim and publicly on the cases he decides. Let him prove by his reasoning that he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor. Throw himself in every case on God and country; both will excuse him for error and value him for his honesty.

    I cringe at your admission that you don’t often read briefs, and we all ought to be livid at Judge Gertner’s admission that she was “trained” on how to get rid of pro se civil rights cases. And don’t even begin to tell me that you would bless the spectacle complained of by the late Judge Arnold, who lamented that forty appeals were decided in two hours. Forget judicial elections. The “right” to meaningful access to the courts for the vindication of fundamental rights, at least for the masses, has been extinguished by FEDERAL judges, and they don’t have to “dial for dollars.” Our judiciary has descended to the point where it is more efficient to buy the damned judge than hire top-drawer counsel for $1,800 an hour (Ted Olson’s going rate, I’m told). I don’t have the power to fix that; I can only complain about it.

    Unlike Colonel Jessup in A Few Good Men, I think that the American people can handle the truth. Most have learned to tune out the worst campaign rhetoric, even if the candidates are petrified that they are unable to. If I were running for a judicial office, I would tell voters that “my only guide-stars are the Constitution and our laws, and it means that it doesn’t always yield the answer that I might like. If you want a judge who promises to be a law unto himself, hire the other guy. If I have to pander like that to earn your vote, I won’t be a very good judge, and I don’t want the job on those terms.”

    Even if a Clarence Thomas accepts de facto bribes on retainer from a Harlan Crow (this was documented by the N.Y. Times), as long as his decisions were well-reasoned and did not betray a hint of payoff. I would accept his dialing for dollars. Personally, I would advocate a system of public finance for judicial campaigns or in the alternative, one where the candidate who is outspent is given an equal amount of money to make his or her case, but the only ultimate measure of judicial performance is judicial performance.

    When the judge imposes his or her will on defenseless litigants, it is unmistakable. According to pre-Justice Kagan, it is “the problem of Platonic Guardians,” and “Bush v. Gore is the tip of the iceberg.”

  26. I wouldn’t want to have to defend your position. To wit, when the text of a provision is not ambiguous, a court is simply not “at liberty to search for its meaning beyond the instrument.” Lake County, 130 US at 670, and the case must be “a strong one indeed, which would justify a court in departing from the plain meaning of words … in search of an intention which the words themselves did not suggest.” Wiltberger, 18 US at 96. The Framers expressly said that Article III judges only hold their jobs “during good Behaviour,” and courts must presume that they actually meant what they said and said what they meant. CT Nat’l Bank v. Germain, 503 US at 253-54 (collecting cases).

    To prevail, you have to explain why the brilliant Justice Wilson included it in Article III in the first place, and why Hamilton praised it so highly in Federalist # 87, if it was just waste-words. And once you do that, you will have to account for the common-law precedent in Coke and Blackstone giving substance to the term and outlining the procedure for enforcing it. See Wilson v. US (terms of art incorporate British law).

    That you doubt that the Founders had that in mind does not at all appear, at least on its face, to be supported by anything more than outcome-driven reasoning. Please make your case.

  27. Why, Your Honor! I thought you’d never ask. 🙂

    You could start by commiserating with Judge Gertner, who admitted that she was “trained” in how to get rid of pro se civil rights cases. Every case dismissed under that judge-made “rule” was a criminal violation of the plaintiff’s rights and a patent violation of a judge’s oath of office. Did your colleagues lie when their swore out their oaths, or did they violate it willfully when they acted? (To define terms, I am construing any willful act that is inconsistent with that oath — fabricating facts and misrepresenting the law, thereby dispensing of a case in a manner not consistent with law — and injures a party is herein defined as an act of judicial dishonesty.)

    And then, there is Judge Arnold’s complaint about how judges routinely abuse the unpublished opinion. Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. App Prac. & Proc. 219, 222 (1999) (sweeping “difficulties under the rug”). When a judge can’t justify his decision, it is probably the wrong decision. There is a reason why 30% of trial court decisions were reversed 50 years ago, and roughly 10% are reversed now: judicial sloth and indolence. He was looking for Anastasoff, and eventually found it. But even though Judge Arnold was absolutely right and made an argument for the ages in accordance with his uncommon skills, he was out-voted. Most judges enjoy being able to play God with our lives, and they are not about to let reason get in the way.

    Then, there are quantitative analyses. Two profs performed a statistical analysis of unpublished appeals of DoL ad law rulings, showing consistent bias attributable to the judges’ presumed political persuasion. Deborah Merritt & James Brudney, Stalking Secret Law: What Predicts Publication in the US CoA, 54 Vand. L. Rev. 71, 116 (2001); see also, e.g., Brigid McMernamin, Justice in The Dark, Forbes, Oct. 30, 2000 (“This is judges disobeying the law” — William Richman).

    Then, there are qualitative ones. E.g., Anthony D’Amato, The Ultimate Injustice: When a Court Misstates the Facts, 11 Cardozo L. Rev. 1313 (1990) (analysis of Branion murder trial). Another involves a guest commentator of yours and a case of judges sitting in judgment of their own cause (it couldn’t happen in Russia, but it did happen here). Although state law established that their “decision” was coram non judice, the trial judge pulled a Gertner and threw his civil rights claim out. How a “ruling” void as a matter of state law could be a proper subject of the Rooker-Feldman doctrine is not at all clear to me.

    The weight of anecdotal evidence is soul-crushing. I would echo the observations of Professor Monroe Freedman:

    Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

    I’m not saying this; JUDGES ARE! Justice Eismann recently said that it is “courts that make bad law in the process of deciding cases based solely upon whom they want to win.” Concurrences would fill a Brandeis brief. Posner. Kozinski. Kagan. Bork. Silberman (CA-DC). Wald (same). Miner (CA-2). Corrigan (MI-SCt) Et alii, ad nauseum. You might call this “standard operating procedure,” or “boys will be boys,” but I call it judicial dishonesty.

    The way you find this is malfeasance by reading the briefs and comparing it to the decisions as rendered. I challenge you to trace Cogswell v. United States Senate, No 09-1134 (10th Cir. Dec. 2, 2009) from the District Court (D.Colo. No. 08-CV-1929-REB-MEH) through the process to summary disposition. The pro se litigant was a Georgetown Law grad with 40 years at bar, and no novice. It was a novel argument, and there is ZERO evidence that it was EVER reviewed by an Article III judge. See also, Erickson v. Pardus. It is not that I don’t have the evidence, Judge Kopf, but that I have too much of it to even begin to distill.

    As you can see, a seriatim response would easily dwarf War and Peace, and as I have surgery to attend this afternoon, I’ll have to leave you with this, as the short tour.

    Most judges can get simple drug cases right, because juries decide the facts, and the law is often so well-settled that the judge is barely more than a machine. You are even given sentencing formulae, mostly because when judges were entrusted with that discretion, the consensus of Congress was that they abused it. Congress figured out that even law clerks can add.

    When the record is this atrocious, and your colleagues are even telling us that the record is this atrocious, it is hard to argue that the record is not that atrocious. As such, I submit (with profound regret) that my Santa claim is on solid ground. Our judiciary needs an enema.

  28. Furrowed-brow, indignant gross over-generalization about the “evil” courts and judges seems to be your mantra. Affects your credibility, meaning I don’t give a flying fig what you think about this. Flame away. . . . . .

  29. crumudgen, you have leaped from the good behavior phrase to a tort remedy as the clear meaning, leaving out the anachronism of tort, the response is if they had wanted some such remedy they would have put it in. .Phrase comes from English statute of 1701 so Wilson was a copy cat. I have not found a case after the statute of suing a judge and the only removal was of an Irish Admiralty judge. Can not find an Australian case either. No longer have ER(FR) or Australian reporters. Cites would be helpful or we can awaite Perfesser’s book.

  30. If you want a flame-war, head to the political blogs. I care about your opinion even less than you care about mine, and I will not attack you personally just because we happen to disagree. I’m too old for such potty nonsense.

    But I do have a few serious questions for you. First, what is an acceptable error rate in our courts? Second, are you prepared to volunteer to have your life destroyed by judicial caprice and if not, how can you condemn others for complaining?

    My interest is in fixing the courts. But in order to fix something, you first have to stop lying to yourself and admit that things are broken.

    The evidence is as disturbing as it is clear, and the prime source of the condemnation is the judiciary you seem to (unreasonably) revere.

  31. Curmudgeon Trust surgery went well. To describe Cogswell v US Senate as novel is an act of charity. Nuts would be a better description. Standing of plaintiff assumes some citizen or taxpayer standing which with narrow exception of Establishment Clause has never been allowed in Fed Cts, textual commitment is so obvious as to make political question a no brainer, and for a critic of judge made Constitution had the courts bought pl’s theories you should have been the first to denounce the result. You are not against Platonic Guardians, you just want them to be on your side.
    That political views influence ad law decisions on review particularly in labor cases is no surprise. No one is totally without preconceptions in these area, but number of cases without division by prior politics is impressive. In addition the Circuits have some times had different attitudes toward agencies almost without regard to composition of the court. Still remember some races to different Circuits. Judges are human.
    List of gripes is biased because it only contains grips, given number of judges and legal scholars your sample is very small.

  32. Why should I fight with you, MOK? We disagree. It doesn’t mean that we have to be disagreeable. As General Patton once said, “If everyone is in agreement, no one is thinking.”

    I don’t see how my personal credibility comes into play here. The facts don’t turn on my opinion. I will tell you my opinion, and the ethical and evidentiary basis for it. You can agree, or not. Life goes on.

    I am of the opinion that the American people have lost faith in our judiciary’s ability to serve as fair and neutral arbiters of the Constitution and laws. And I am hardly alone in that assessment. As Judge Roger Miner (CA-2) wrote:

    The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry.

    Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004).

    Judge Miner was one of the few truly non-partisan judges. Douglas Martin, Roger J. Miner, 77, Dies; Judge Valued Neutrality, N.Y. Times, Feb. 20, 2012, He may have blown his chance to become a Supreme Court Justice because he refused to lie about how he would rule on cases involving abortion to Republican lawmakers. If all judges were like Miner, I would have nothing to complain about.

    In one of the articles Judge Kopf recommended to us, Judge Posner admitted that he had “a very high error rate,” and he suspected that he wasn’t alone. Elsewhere, he admitted that he wasn’t as careful in reviewing unpublished opinions.

    That offends my personal sense of morals. A wrong judicial decision can destroy his career, his reputation, his future. I can’t tolerate a “high error rate.” Perhaps you can … and I can only wonder how your perception might change if you were on the business end of judicial sloth or caprice.

    All I ask you to do is ponder that possibility. Look in Petra’s eyes, and tell me how you would sleep at night if your action deprived a deserving man of a reasonable chance of being able to afford a family.

    Sure, I’m hard on the judiciary. But I accept it as a solemn duty. As Judge Miner said,

    In my opinion, one of the most important societal duties of lawyers is the duty to criticize the courts. It is my premise that informed criticism of the courts and their decisions is not merely a right, but also an ethical obligation imposed on every member of the bar

    Roger J. Miner, “Criticizing the Courts: A Lawyer’s Duty,” 29 Colo. Law. 31 (Apr. 2000).

    Agree? Disagree? If so, why?

  33. It did. Thanks, RL. But I wasn’t the one under the knife this time.

    I respectfully disagree. The facts of Cogswell are as follows: The District of Colorado was less-than half-staffed, owing to partisan political gridlock. Judges were performing triage, instead of deciding cases. At what point does the dearth of judicial resources constitute a denial of access to the courts?

    You remember Marbury v. Madison. The essence of civil liberty consists “in the right of every individual to claim protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” When access to the courts is unduly restricted, and the judiciary starts deep-sixing meritorious cases due to a crushing volume, has the government not failed in its duty? At what point is there a 5Am violation? Whenever a government practice affects you both personally and uniquely, you have standing under Lujan.

    Obviously, you didn’t complete your “homework assignment.” You don’t stop at reading the magistrate’s opinion. You had to read the briefs, and a veteran attorney with a G’town Law education isn’t going to advance a batshit-crazy tax-dodger argument. Sloppy work, for an admin law prof — where even picayune details often matter. It certainly wasn’t a taxpayer standing case.

    The magistrate’s lies only confuse the lazy.

    When the main determinant of whether you win or lose is the party who put the judge on the bench, it stops being law. Judges are human, but so was Saddam Hussein. Your point?

    As far as the “list of gripes,” your objection is risible. The percentage of decisions reversed on appeal has dropped by 2/3, which naturally implies that 2/3 of the trial court errors are missed. We know why: judges admit that they don’t read the briefs, and spend ten minutes or less deciding an average appeal. Maybe it’s just me, but to me, a 60-70% error rate is not acceptable.

  34. Curmugeon, That politics produces a lot of mess is hardly debatable and both parties have played political games with stalling judicial appointments. That hardly makes the filibuster justiciable, given the usual tenner of your comments I would think you would accept that we still have the voting remedy. Formulation of a remedy seems non judicial, though that maybe old fashion. Where all citizens suffered alike under usual idea of standing, there is no standing and injury to all is no injury for standing purposes. Glad you are impressed with a Jesuit law school not sure of relevance.
    The list of grips was for lack of adequate sample of commentary. I do not know what change in reversal rate signals, though in ugly practical moments I use St. Louis as a grounds for advising against the selection of fed ct Mistake rate seems your own invention.
    ‘In one sense of course one mistake is too many but mistakes happen where humans are involved, show me a surgeon who is not making mistakes and I will show you a surgeon who is retired or dead

  35. RL, I fear that you misunderstand the very concept of a Bill of Rights. Majorities can take care of themselves, enjoying a vast wealth of remedies. But we are all a minority of one. The only recourse an individual often has is to the courts; if you strangle them, you deprive him of any recourse he might have had (short of Blackstone’s absolute right of Englishmen to use lethal force as a means of self-help, which was the legal basis for the American Revolution). If you want to know why people can’t always count on their neighbors for aid, ask Niemoller.

    SCOTUS has declared that we have a 1Am right to meaningful access to the courts. Bounds v. Smith. That conveys standing to those citizens in an immediate need of their services under any reasonable reading of Lujan. You can disagree in the abstract, but to some of us, precedent matters.

    Georgetown is ranked #13 by UNSWR; Creighton, #113. Regent (Pat Robberson’s school, and Monica Goodling’s alma mater) is not even ranked. I presume that there is a reason for it, and not a religious one. (Suffice it to say that that constitutes a warranty that that Cogswell is smarter than the git on the Jetsons.)

    Show me any surgeon who is as sloppy as a federal judge, and I will show you a surgeon who has been forced out of business by crushing malpractice premiums. The surgeon is like an umpire, who only gets one chance to make the right call. Judges have their calls reviewed in very-slow motion at the replay booth and then, the League Office. Your analogy is preternaturally silly.

    Your argument that every federal judge has to complain about the shitty job he or she does in order for the complaints to be valid defies both human nature and common sense. Judge K referred us to a CA-9 judge who wrote an article about what a judge ought to do when he makes a mistake. He told us that they tried very hard not to make them, but how hard can you really be trying if you admit that you decided 200 appeals in a two-day session? (If anyone has the Judge’s personal e-mail, I’d love to ask him.)

    The system is set up in such a way as to make gross negligence all but unavoidable, and when we compare the modern reversal rate to that in the day when they did it the Learned Hand way, it appears that the courts of appeal miss two-thirds of the cases in which reversible error occurs. The case is made, and in spades.

    If we need to hire another 1,000 appellate judges and another 2,000 trial judges, we do. But let’s get it right. As CJ Marshall once put it, “The Judicial Department comes home in its effects to every man’s fireside. It passes on his property, his reputation, his life, his all. Is it not, to the last degree important” THAT THEY GET IT RIGHT?!?

    I may piss the Judge off with my criticism, but I am more pissed off by the shitty job our judiciary is doing. Don’t tell me we can’t do better. Don’t tell me we don’t need to do better.

  36. RL: “Wilson was a copy cat.”

    OF COURSE, HE WAS! With all respect, you embarrass yourself with that remark. The first thing that you learn as a transactional lawyer (if you didn’t learn it in law school) is that “we have done it before.”

    Why should you copy provisions from existing contracts? First, they are not copyrightable. Second, you know what they will accomplish. For the most part, the Committee on Detail copied provisions from the state constitutions, because they knew that they accomplished what they wanted to accomplish. Why would he reinvent the wheel?

    But let’s look at the Act of Settlement. First, it is the first time that the commissions granted to all English judges were quam diu se bene gesserint (Wilson used the translation). Also, if you will note, Parliament retained the power to remove judges via address — the equivalent of our power of impeachment, except that they could be removed for any reason or no reason at all. Now, if the only way you could remove a judge is via address/impeachment, it logically follows that “good behavior tenure” is by definition illusory. Accordingly, it follows that Parliament (and Wilson!) had something else in mind.

    You will also note that Parliament did not try to define good behavior, and neither did Justice Wilson. They didn’t really need to, because it was defined by pre-existing law. Nor did they specify a method of enforcement. Again, they really didn’t need to, because one had been established by pre-existing law. By implication, Wilson incorporated pre-existing British law.

    This understanding is further confirmed by the Northwest Ordinance of 1787. The Continental Congress granted judges judicial commissions subject to good behavior, even before the Framers wrote the Constitution containing the remedy of impeachment. Obviously, the one could not rationally be conflated with the other.

    Finally, your remark concerning tort remedies is especially unbecoming from an AdLaw prof, who should understand the salient difference between administrative and tort remedies. In an action to remove a judge, all that a litigant gets is the ability to serve a can of whoop-ass to a judge who richly deserves it.

    There are a few examples of the remedy being used in British law — both offensively and defensively — but you would have had to have read Berger to know that.

    Parliament has only removed one judge via address in 300 years. That a remedy is not used does not mean that it does not exist.

  37. Both the remark about Wilson and about torts were meant to be humor. Wilson rather shared by Scots philosophical taste for tradition, but torts is a 19th century concept. Taught torts and tort based cases for 42 years, did a large number of torts appeals, and still advise on mall practice cases. Read Berger years ago,his reputation for historical scholarship has faded and I gave my copies of his books to library long ago.Would like to cases involving judges of the three common law courts. But you keep making my real point about the supposed clarity of history. You are channeling Wilson but I doubt your reading. Starting with the Act of Settlement does rather remove Coke from the discussion.

  38. I never said we did not need to do better, I said Cogswell is a current non starter, though he might have had a neat law review article. I know about Bills of Rights, first generation, second generation, and third. Am aware of access to the courts as an aspect of 1st Amendment, used to teach it in antitrust, but standing argument is a long stretch under existing case law and political question is obvious even if a good many mandatory injunctions have been aimed at State and lower level executive officials.. The current ranking of GTl in US News says nothing about the night program 40 some years ago or how much has been retained by a graduate of unknown class rank and grades after that period. Remark about Jesuits was not said in criticism high school, college, and law school and at one of their universiities, as did my father , and brother, 4 sisters went to a Jesuit University, and 3 of my sisters went to a Jesuit law school, as did an uncle, a nephew and two cousins. Not as prestigious as Gt, but as Webster said there are those who love her.
    Cogswell’s theory smacks of the Warren Court age and the theory that the courts were the answer to all political deadlock. I did not believe it then and I do not believe it now. As a State Con law argument in a state that has been active in the golden age model of State con law rather than SCOTUS clones it might be a strong argument particularly in a state with an open courts and no wrong without a remedy language in State Constitution .First year I practiced I had to draft every thing myself before I could look at forum book. Got to look and correct after, so the stud contract to service a nice mare our client owned included a fertility warranty on the stud. City boys do nopt think of that.

  39. C, it sounds as if RL dissed Berger because he knows damn well that Berger won’t support his position. Perhaps he would entertain more modern scholarship:

    … for at least two centuries prior to the Constitution’s creation, good-behavior tenure had no necessary relationship to impeachment. Officers might have good-behavior tenure in a regime that wholly lacked impeachment. Conversely, a regime might feature impeachment without any
    of its officers’ having tenure during good behavior. Moreover, regimes that featured impeachment clearly sanctioned the removal of officers with goodbehavior tenure by means other than impeachment. Finally, private individuals with good-behavior tenure could have their tenure terminated in the ordinary
    courts. Hence, in 1787 impeachment was hardly considered the sole means of
    removing someone with tenure during good behavior. Because the Constitution has nary a clue that it establishes any connection between good behavior tenure and impeachment, the better reading is that impeachment is not the exclusive means of removing federal judges. Instead, the Constitution adopted the then-established view that officers with good-behavior tenure forfeited their offices upon a finding of misbehavior in the ordinary courts.

    Saikrishna Prakash and Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 77 (2006), at

    They go on to observe that “Sir Edward Coke
    listed three grounds for forfeiture: abuse of office, nonuse of office, and refusal to exercise an office.” Id. at 90, citing these sources:

    Henry v. Barkley, (1596) 79 Eng. Rep. 1223, 1224 (K.B.); see also R v. Bailiffs of Ipswich, (1706) 91 Eng. Rep. 378 (K.B.) (holding that the recorder of a corporation forfeits his office if he fails to attend corporate meetings); 16 CHARLES VINER, A GENERAL ABRIDGMENT OF LAW AND EQUITY 121 (London, 1793) (“If he does contrary to the duty of his office, as if he doth not do right to the parties, this misfeasance is forfeiture.”).

    I hadn’t thought of the NWO, but you are right. Under the Articles, there was no such thing as impeachment, as there was no judiciary or even an executive branch to speak of. To use it in an ordinance written mere months before the Constitution was penned with the intention of having it mean something and then, deny that it meant anything, is the height of folly.

    RL is searching for objections like a pig after truffles.

  40. Pig with truffles you , your cite to Coke predates the relevant statute, and the law review article merely recites the argument Crumudgeon makes, calling it better. I am an agnostic on better, but remain committed to the view that each piece of historical scholarship should overturn settled practice. Never been frightened to disagree with Berger, though he seems to be your version of Holy Writ. For one so close to Thomas in jurisprudence, nothing is settled till I agree, you have made some mean remarks about him.

  41. In comment I meant should not, upset with Perfesser’s obvious knowledge of my porcine appearance struck close to home.

  42. Crumudgeon,Why Creighton, could be SLU, BC, Fordham,one of the Loyola’s, Seattle, SanFrancisco or SantaClara or Marquette.

  43. Left out Gonzaga, who is Monica Goodling? Youngest Son a fan of Jetsons, but that was long ago had forgotten characters.

  44. Why Creighton? Because it was #113 … and just happens to be in NE. Serendipity. 🙂

    Goodling was the Regent U. grad who got dressed down famously in a congressional hearing for not knowing that her loyalty was supposed to be to the Constitution, not the Administration.

    I’ll leave the other ancient pop culture references to Wikipedia, if you don’t know them. Other response in new thread.

  45. Re Cogswell: A basic philosophical question should resolve this handily: How can a “right” even exist if there is no remedy available for its abridgement? The High Court in England answered that query thusly: “it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” Ashby v. White, 92 ER 126, 136 (1703). If a judge can slam the door on a litigant for any reason or no reason at all, there is no way to vindicate a right and therefore, the right is extinguished. What was once an indefeasible right becomes a mere liberty interest, subject to summary revocation by your masters in government.

    Your “solution” is no solution at all, for by the time the political process gets around to addressing the problem, your claims are time-barred. And if Congress could invalidate the Bill of Rights by shutting the courts down (they could do this before the Bill of Rights), then it becomes what one wag called the “Bill of Polite Suggestions.”

    This isn’t “Warren Court.” This is pure Marshall Court. Marbury v. Madison. McCullough v. Maryland. Kendall v. US. Your “solution” invalidates the Constitution itself, by denying those who signed on the benefit of their bargain. Where a constitutional injury is suffered, remedial provisions are interpreted expansively and as necessary, remedial authority is implied. Would anyone have ratified it if this was not the case? No. Your position stretches the Constitution to the breaking point. Ergo, Cogswell was right, and your vague complaint that it is “a stretch” doesn’t even pass the “you want it when???” test.

    Re Good Behavior: If you can’t be bothered to review Berger’s or Prakash’s work, I won’t take the time to abridge it for you. Judge St. George Tucker traced the “long train of decisions” back to the reign of Edward III, and you should be able to do the same, were you so inclined. In R. v. Richardson, Lord Mansfield declared that “[u]nless the power [to enforce good behavior tenure] is incident, franchises or offices might be forfeited for offenses; and yet there would be no means to carry the law into execution.” 97 ER 426, 458 (1758). The grant of judicial offices subject to good behavior in the NWO (when no impeachment power existed!) proves conclusively that it was different from impeachment, and that document was written just prior to the Constitution. That no specific means of enforcement was specified either in the Act of Settlement or the NWO indicates conclusively that the common law mechanism was to be used, and the same logic would follow when interpreting the Constitution.

    RL, this is a constitution we are interpreting, and there is clear precedent on how to interpret it. Every right has a corresponding remedy. The Framers said what they meant and meant what they said. It is the office of the judge to “make construction [of a law] as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief . . . according to the true intent of the makers of the act.” Heydon’s Case, 76 ER 637 (Exch. 1584). This is common currency among constitutional scholars, but a country lawyer who taught Torts and AdLaw might not be familiar with it. As a top-drawer tort lawyer once told me, “I’m a legal mechanic. I know facts and procedure. I’m not an expert on constitutional theory.” He makes Edwards-like bank, but knows his limitations.

    To sustain your position requires a truly Herculean lift. You have to be able to show that the Framers added that phrase knowing that it was meaningless, explain why Hamilton said what he said in The Federalist if he knew it wasn’t true, why the phrase was included in the NWO of 1787 (when there was no such thing as a federal impeachment power) when the 2CC intended it to be meaningless, why the Act of Settlement granted commissions subject to good behavior when they could remove a judge for any reason or no reason at all, and why the common law definitions and procedures don’t apply. And to get there, your argument has to be compelling, as you bear a heightened burden when you claim that the plain words of the Constitution really don’t mean what they say.

    The case has been made; the ball is in your court. Crickets on standby.

  46. USNWR has been the cross of every law teachers existence. but I have left the rate race and am no longer
    bothered by such matters. Cogswell and you have an interesting theory which has little to do with the standards of justiciability now applied. I do not think those standards are wrong.
    I have conceded I am not an originalist, so I do not much care about the historical explorations in the Yale article which concedes that for most of our history we have assumed exclusivity. How much we should attribute to the Framers knowledge of English practice of treating most public office as a type of propertyI do not know and the Article does not demonstrate How much of the material was actually available in the Colonies is also not demonstrated. The authors assume the material they cite was readily available and widely know
    in the Colonies. Why. Today a reasonably competent researcher could go to the Penn Law Library and do the research, but it was not there at the time And even if it had been it might contain material that we think relevant because of our debates about meaning might not have interested them. They may have selected familiar words without the gloss. But until you have the gloss the words are not plain.
    Put another way I think scholarship of this kind is misguided. It assumes the Framers anticipated certain modern ideas about how history and kindly did the research that we would attribute to them.I see no reason why settled practice should be overturned with each new law review article that has played this game.
    Nothing in the Yale article suggests an implied tort remedy, your pet solution, not does it suggest a cause of action for removal existed but was suppressed by generations of Federal Judges to make their life easier. What it does say is if you treat good behavior as a disjunct and add in the necessary and proper clause Congress could create a removal procedure to be pursued in court by someone pursuant to the creating statute. If Congress did that we would face different issues and on those I will take a pass..

  47. RL: How much we should attribute to the Framers knowledge of English practice of treating most public office as a type of property I do not know and the Article does not demonstrate How much of the material was actually available in the Colonies is also not demonstrated. The authors assume the material they cite was readily available and widely know in the Colonies. Why. Today a reasonably competent researcher could go to the Penn Law Library and do the research, but it was not there at the time And even if it had been it might contain material that we think relevant because of our debates about meaning might not have interested them. They may have selected familiar words without the gloss. But until you have the gloss the words are not plain

    In short, your argument is an appeal to ignorance: “These brilliant lawyers couldn’t have possibly known.what the fuck they were doing.” But all you do here is unmask your own studied ignorance of the matter. (Nothing personal, of course. We are all ignorant when it comes to many subjects; by way of example, I would be lost on a farm.)

    While none would have had access to the modern law library, every American lawyer had access to and had studied Blackstone. Anywhere between 5-10,000 copies were sold on this side of the Pond (I recall reading somewhere that an American edition was printed, but please don’t hold me to it); according to an article in the Penn Law Review, known subscribers to his seminal work included Thomas Jefferson, John Marshall, JAMES WILSON, John Adams, and James Kent., John Dickinson,, and Alexander Hamilton. e.g., Federalist #84;, St. George Tucker (who wrote a famous commentary on it), and James Madison must be added to that list. Pointedly, “[t]he American Revolution was a revolt against the politics of English government, but not its legal foundations; the Commentaries, in fact, were cited nearly 10,000 times in the reports of American courts between 1789 and 1915.”

    Think about it, RL. At least five thousand copies, for a population of 3,000,000. One for every lawyer, and then some. And most certainly, it was to be found in the library of every one of the Founding Fathers who practiced law. Yeah, I’d say that Prakash and Smith are on solid ground when they assume that Blackstone was common currency among lawyers of the day.

    And what would they have found in Blackstone? Of central importance to this discussion, they would have found the mechanism by which good behavior tenure was enforced (3 Blackstone 260-61):

    WHERE the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, or where the patentee hath done an act that amounts to a forfeiture of the grant, the remedy to repeal the patent is by writ of scire facias in chancery. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias.

    The writ of scire facias was recognized explicitly in the All-Writs Act, and it appeared to have no other purpose. Ergo, Congress DID “write a law” — certainly in the NWO — adopting the common law procedure for removing judges in territorial courts. This British regime existed in several of the States, as well (per the Federalist). While Congress certainly could have put more meat on those bones, it did not necessarily have to.

    Selected familiar words without the gloss, my ass! One of the first rules of statutory interpretation is that lawmakers knew what in the fuck they were doing. If that is the core of your argument, you should take to putting a bag over your head when you make it. While hick country lawyers might not have had their own copies (Lincoln did), James Wilson did. And to even suggest that Wilson — one of the pre-eminent legal scholars of his age — honestly didn’t know what in the fuck he was doing “taxes the credulity of the credulous” (Scalia). Anyone who has even perused his Lectures knows better.

    We can debate originalism another day, my friend. But if this is the core of your argument, it must fail.

  48. Neither the Berger nor the Prakash article infer a remedy, but the common law does, and when you eschew the common law entirely, you raise a whole new set of problems.

    Where in the Constitution do you find the doctrines of judicial or sovereign immunity? Neither one makes even a scintilla of sense (many states have found that they do not enjoy sovereign immunity, and the Westphalian saw that “the King can do no wrong” NEVER existed in English law). The Fifth Amendment speaks in absolute terms; it does not brook exceptions for any abridgement of life, liberty, or property done without due process of law by judges. Sovereign and judicial immunity are logically inconsistent with the Bill of Rights — but you may believe that it is the “Bill of Polite Suggestions.”

    If there is no common law, there can be no absolute immunity. You may not be able to remove wayward judges from the bench, but you ought to be able to sue them into the poorhouse. I invite them to pick their poison. As a good Scotsman, I’d prefer to take their money. 🙂

    And where do you find the concept of tort, if not in the common law?

    But when you abandon originalism, you necessarily abandon the concept of the rule of law entirely. If the Constitution is not the supreme Law of the Land, WHAT IS??? And then, there is the problem of consent. While the American people consented to be ruled by the Constitution, they most certainly did not consent to be ruled by “whatever the Supreme Court pulls out of their arses on any given day.”

    RL, do you really think that the Framers fought a bloody revolution, in which the modern equivalent of the entire city of Boston perished (25,000 Colonists lost their lives), simply to change (in the words of Jefferson), “this master for that”? To replace King George with King Judge? To embrace an American Fuhrerprinzip, where the words of der Fuhrer (the guys in black dresses) are the law? You might BE a servile lickspittle, but “as for me, give me liberty or give me death!”

    Scalia won this debate in the academy, and rightfully so. The problem you have to solve when you abandon originalism is in replacing it with a system that works. If our judges are empowered to write law, and to exercise veto power over any and all legislation Congress passes (e.g., Citizens United), WHERE do they find that power? When you abandon originalism, you jettison Montesquieu’s separation of powers. You transform judges into Platonic Guardians, with absolute and despotic power over us.

    The originalist properly understands the Constitution as a treaty, and treaties are governed by the law of contract. The intent of the parties is divined from the words of the document, and the axiom of pacta sunt servanda governs. If the contract says that Article III judges are given a lifetime tenure conditioned on maintenance of “good behavior,” we look into existing law to see what that term of art means, and we reasonably assume, R. v. Richardson, that there is a way to enforce that provision. If you want to change the “contract,” you do, but you have to do it the hard way.

    In abandoning originalism, you necessarily abandon the rule of law for naked tyranny. You would make our judges into tyrants, and condemn me to slavery.

    I won’t take credit for this argument, as it is not my own, but it is brilliant: “As Lincoln said, ‘No man is good enough to rule another without his consent,’ and the Constitution marks the outer limits of my consent.” By what right do our judges rule, RL?

    I respectfully submit that your theory of constitutional law is not only grossly misguided but senseless, and call on you to do a little repenting.

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