A recent poll conducted by Opinion Research Corp. on behalf of CNN shows that 67% of those surveyed say that federal judges and the decisions they make should not be subject to more control by politicians. I haven’t seen the phrasing of the question, and this is often crucial with polling, but to the extent it was not biased and that the respondents understood the meaning of “control”, we have an obvious conflict here, not only with the intent of the Founders, but with the written words of the Constitution itself in Article III, Section 2, which gives Congress the authority to establish rules for federal appellate jurisdiction. Former Supreme Court Justice Sandra Day O’Connor had previously weighed in with an opinion essay complaining about attempts to discipline judges, as with the South Dakota ballot initiative called a “judicial accountability initiative law” and efforts by Congress to “police” the judiciary, and she worries that these and other activities might serve to damage the independence of the judiciary and/or intimidate judges. In a subsequent interview with CNN she laments, “As I went through the last few years of service here at the court, I saw increasing indications of unhappiness with judges.”Justice O’Connor may have justification for her concern, but she shouldn’t be at a loss for the reasons for the unhappiness with judges. In a response to her essay, retired Fifth Circuit Court Judge Charles Pickering has it pegged: “Some in America today seek to win in a court of law that which they cannot win in the court of public opinion, at the ballot box. Americans do not want “sympathetic” judges, they want impartial ones…..justices are now asserting that they have the power to exercise their independent judgment to determine the “sense of decency” of modern, evolving society….the thought process for political, not judicial decisions”. The end result of the judicial overreach described by Judge Pickering is the removal of many of our “wedge” issues from their proper home in the give and take of the democratic process, however messy it might be, producing an environment that is largely responsible for much of the sense of frustration and incivility that prevails in our public policy discourse.
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