Alexander Hamilton once called the courts of justice “bulwarks of a limited Constitution against legislative encroachments.”
What he meant was that the judiciary, despite the fact that it is by design the weakest of the three branches of government, exists to keep the legislature in check.
If either the president or Congress oversteps their constitutional bounds in any way — as both have in this nation’s history — it is the judiciary’s duty as an independent and impartial actor to exercise its power of judgment (but not force nor will, as Hamilton duly reminds us) to limit the other two branches.
Theoretically speaking, this task does not seem all that difficult. The judiciary, as a group removed from partisan politics, serves as the primary intermediate body between the legislature and the people.
But, as Hamilton remarked, what seems simple in conception is often the most difficult in practice.
That is why he advocated in his Federalist No. 78 for the permanent tenure of judicial offices, “since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”
In a democracy that prided itself on popular sovereignty, Hamilton asserted, this was one facet of the government where the people actually should not be able to elect their officials.
That statement was truly exquisite rhetoric, but it’s too bad that Hamilton’s words aren’t being heeded today. Consider the current state of affairs in Kansas.
This year, five of its seven Supreme Court Justices must be reelected by a majority of Kansas voters.
Republicans in the legislature called for this measure. Given what we know about the founders’ intent with regard to offices in the judiciary, these elections seem like an outrageously bizarre and inappropriate violation of American ideals.
Some, notably the legal scholar Lincoln Caplan, have suggested that the measure is a futile attempt by Kansas republicans to rig the system in their favor.
Maybe they’re right.
Or maybe Kansas republicans have unwittingly illuminated an intrinsic problem with America’s judicial system.
It is clear that elections are not the ideal vehicle for putting judges on the bench, as they are invariably compromising to the integrity of the judicial system itself.
As the political commentator John Oliver lucidly stated on his television show Last Week Tonight, “the problem with an elected judiciary is that sometimes the right decision is neither easy nor popular.”
But who is to say that the methods we have in place now are free from flaws?
Caplan notes that in Kansas “a commission of lawyers and non-lawyers nominates three candidates for an open position, and the governor picks one to appoint.”
That all sounds lovely, but are we to count on these “lawyers and non-lawyers” and “the governor” to be entirely independent and impartial?
Of course not.
To be sure, it is unlikely that moving to partisan election of judges would solve any problems. In truth, it would probably create even more.
But it is tactlessly disingenuous to declare that the system we have now is devoid of error.
Thus, we arrive at the fundamental problem with America’s judiciary. No method is ideal, and judges, due to the unavoidable fact that they are humans, will inevitably make mistakes.
But I suppose we knew that. After all, as James Madison observed, “if men were angels, no government would be necessary.”