Imagine a society that makes many of its most important decisions in the following manner: a tiny number of citizens are anointed members of a priestly caste, which has the power to determine the society’s most fundamental rules.
The priests make these decisions by consulting ancient texts, written in an archaic language that remains incomprehensible to much of the laity. Nevertheless impious souls sometimes point out that the texts don’t appear to answer the questions the priests ask of them. This impression is reinforced by the fact that members of the priesthood disagree violently among themselves regarding what the texts actually say.
Imagine further that, in this strange society, members of the priesthood are appointed for life by a legislative council that often has no clear idea what a priestly candidate’s views are regarding the meaning of the ancient texts. This is a consequence of a custom that declares it improper to inquire too closely into a potential priest’s views on such matters, when his fitness for the priesthood is considered.
The oddest feature of this society is that it considers itself a model of democratic rule, even though it has placed a great deal of political power in the hands of an unelected, life-tenured, and thoroughly mysterious priesthood.
The recent struggle over judicial filibusters took place precisely because modern America resembles this imaginary society. Republicans recognize that nothing is more important to their political agenda than to appoint judges who will advance it. That’s why they considered the extraordinary step of changing the Senate’s rules of debate to force votes on judicial nominations that have been blocked by parliamentary maneuvering.
Democrats, of course, realize the same thing, which is why they were willing to go to extraordinary lengths to block certain nominees. (The heated battle that just ended was a prelude to the all-out political war that seems certain to break out later this year if Chief Justice Rehnquist announces his expected resignation.)
Everyone agrees that judicial appointments in general, and Supreme Court appointments in particular, hold the key to shaping the political landscape on many crucial issues for decades to come.
Acres of trees have already been sacrificed to debating the merits of judicial filibusters and the Senate rules that govern them. What’s remarkable is that almost no one has commented on the absurdity of the system that makes such extreme tactics inevitable.
The notion that unelected, life-tenured judges should have the ultimate say on matters ranging from the legality of abortion to the legitimacy of the New Deal fails to strike us as bizarre only because we are so used to it. That we’re not supposed to press judicial nominees to reveal their views on these matters adds a particularly surreal touch to the proceedings.
It’s unclear why, other than from blind imitation of the past, we continue to allow judges to substitute their political views for those of our elected officials (and all judicial review of the constitutionality of government action is little more than this).
Short of getting rid of judicial review altogether, a more rational legal system would at least limit federal judges to a certain term of office _ say, seven years _ after which the legislature could evaluate whether a judge’s oracular pronouncements regarding such mystical matters as “what the Constitution requires” were sufficiently sensitive to popular sentiment.
Naturally this isn’t going to happen (nothing proposed by reform-minded academics ever happens). Still, I believe that pointing to the absurdity of some of our practices has a certain therapeutic value, even if the practices themselves remain too sacred to consider altering any time soon.
(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)