Jun 5, 2016

Lawyers Against Democracy

Now in ships which are in a state of mutiny and by sailors who are mutineers, how will the true pilot be regarded? Will he not be called by them a prater, a star-gazer, a good-for-nothing? ... The sailors are quarreling with one another about the steering -- every one is of opinion that he has a right to steer, though he has never learned the art of navigation and cannot tell who taught him or when he learned, and will further assert that it cannot be taught, and they are ready to cut in pieces any one who says the contrary. They throng about, demanding the helm; and if at any time they do not prevail, but others are preferred to them, they kill the others or throw them overboard. Plato's Parable of Democracy, The Republic, Book VI 
Elite criticism of democracy is rising as various notables have expressed themselves unable to vote in conscience for either of the "utterly loathsome, vapid, corrupt, and unworthy" candidates democratically selected in the U.S. presidential nominating process. If the American people are incapable of democratically nominating two candidates fit for office, (and, at this point, we don't seem capable of even conducting the process without politically motivated violence), this is a crisis. Since the people cannot be replaced fast enough at our current rate of 1.3 million immigrants per year to place hope in this method for fixing the problem, our elect-a-new-nation elites troubled by democratic decisions are re-examining the people's democratic power. For example, the potentates of the Republican and Democratic parties are scrambling to place candidate nomination outside the reach of the people before the next presidential election.

In that spirit, the Arkansas Bar's "Task Force on Maintaining a Fair and Impartial Judiciary" recently released a report attacking their current system of democratic elections of Arkansas Supreme Court Justices (and calling for it to be replaced by an attorney-controlled selection commission), giving three reasons.
First, courts are supposed to be "above the political fray." [tell it to the courts with their naked 5-4 partisanship and decision to intervene in political issue after issue]
Second, judicial campaigns were "overwhelmed by the 'dark money' effort" which "unduly influences Supreme Court election outcomes." [if dark money makes officials unduly influenced then the whole American governmental system is illegitimate]
Third, the Task Force's proposal of a well structured nominating commission would enhance the "diverse nature of justices on the bench" because it would follow the recommendation of the liberal "Brennan Center for Justice, [which] through its report, Improving Judicial Diversity, offers a set of ten best practices to nominating commissions to attract the brightest female and minority candidates to the judiciary, including having a systemic recruitment effort." [naturally race and sex rather than jurisprudential diversity or qualification is the chief concern about outcome]
For an example of how democracy has affected the Arkansas Supreme Court, here is the candid account of a retired liberal justice explaining how the Court's liberals delayed releasing an opinion mandating same-sex marriage and voiding a popular constitutional amendment maintaining matrimony because of political fears. In the most recent election, two liberal justices, one female, who had identified themselves with same-sex marriage and personal-injury attorneys, were subsequently defeated by conservative candidates. With less democracy, the liberals would have felt free to change the law without consequence.

The rushed timing of the Bar's intervention, after the defeat of leftist legal interests by "dark money" (i.e. groups assisting Arkansas Christians in removing radicals from the bench before they could further tyrannize Arkansans by imposing their moral view upon them) and before the Arkansas Supreme Court's own imminent report, and its focus on affecting the outcome of the selection in favor of some kinds of diversity and not other kinds (e.g., jurisprudential, religious, veteran status, business experience, experience with criminal defense or prosecution, non-professionals), raises questions about whether the Task Force is itself "above the political fray."

The reason the public does not regard courts as above the political fray is because they have intruded themselves into political issues unguided by clear legal rules or constitutional texts. If the courts held themselves to legal issues instead of remaking society in the image of judges' radical political theories, then there would be little to be concerned about. Given the corruption of elite culture in the United States, direct democratic election of justices seems the best available option for limiting the current unbridled abuse of judicial offices.

Moses wasn't afraid of a popular role in selecting judges: De 1:13 "Choose some wise, understanding and respected men from each of your tribes, and I will set them over you." If our political leaders can't trust us with the selection of judicial officers, that says something terrible about us, them, democracy, or all of these.

1 comment:

  1. Visiting Independence Hall yesterday I noted four things. (1) the first display rack in the gift shop featured an "Election 2016: I'm Moving to Canada" t-shirt. (2) The founders' rebellion against a tyrannical gov't seemed relatable. Is treason really so bad if George Washington did it? (3) Most of the park rangers were white (and childless according to one). (4) Every exhibit mentioned slavery no matter how tangential. (5) bonus round: spanish speakers and homosexuals seemed omnipresent.

    Later, visiting walmart, many persons were barely recognizable as human.

    It's been years since I've been back stateside. The elites might be right that democracy is no longer tenable. They might be wrong that they'll be holding the whip hand when everything sorts itself out. The groundwork they lay can be used against them.