Similar to my previous little rant, I feel the need to say something about some of the statements Representative F. James Sensenbrenner Jr. made in this NY Times Article (registration required; bugmenot to the rescue).
Rep. Sensenbrenner is now advocating the idea of an "Inspector General" for the federal judiciary, in order to combat the problem of "judicial activism." Says Sensenbrenner, "I do not believe that creating an I.G. for the judiciary will violate the separation-of-powers doctrine." Let's take a look at that for a moment.
First, it is essential to take a look at what "separation of powers" really means. For a good primer, see the Wikipedia entry. Inherent in the idea of separation of powers is that of checks and balances. So far so good. We can see how such things are carried out in the interactions of the executive and legislative branches. The President has the power to veto legislation, the power can be overridden with enough consensus, and in the meantime Congress has the power to impeach the president for certain actions.
These checks are found in the Constitution, and are pretty clear. The various checks and balances on the judiciary are far also laid out in the Constitution. For example, judges are appointed by the president with the "Advice and Consent of the Senate." Congress also has the power of impeachment of judges. The point to all this is that in no case is any kind of "inspector general" to be placed over the judiciary. Which branch would this IG work for? Would the President have this power, or Congress? What, exactly is this IG supposed to be watching for? Are all judicial decisions to be subject to review by one person? There is a review process for judicial decisions, remember, and it is the appeals process.
Let's analogize this to the other branches. What would Bush say if Congress tried to put some sort of inspector general to oversee the Executive branch? I can guarantee there would be a major outcry. And if the President tried to do the same thing to Congress? The same kind of outcry would happen.
Essentially, what we have here is one or more branches of government that want to keep another in their back pocket. They want to be able to control the judiciary. This cannot be allowed. Our co-equal system is designed to be a kind of tripod. Each branch is falling inward and because they're all leaning against the other two, they support each other. Something like this IG would essentially remove one of the branches and the whole structure would fall inward. It may not be quick, but it would be inevitable. Rep. Sensenbrenner clearly isn't thinking this through and appears to be playing with people's fears. If you say something often enough, people start to think it is true.
Let's take another look at a couple more statements. "'The judiciary isn't supposed to write law, and the Congress cannot determine how a court will rule,' he added. 'But the branches are interdependent entities as well.'" First of all, the judiciary does write the law in certain critical ways. It is naturally bound by legitimate dictates of Congress, but there are plenty of ways that disputes come up regarding things that Congress has neglected to fill in. There are many kinds of claims that actually have never been spoken upon by Congress or any other legislative body. These bodies can and do override these common law claims in various ways, but if they don't, the law stands. Additionally, Congress and other legislative bodies are often imprecise in the language of their statutes. This is necessary to a large extent. It is nearly impossible for any lawmaker to anticipate all possible applications of a law and leaving case by case interpretation up to the courts is an extremely efficient way of making sure that the law keeps justice in mind rather than slavery to the written words.
According to Mr. Sensenbrenner's biography, he is a lawyer. One would think that he knows this. I would venture a guess that he does know this. The question becomes, why would he say such things? I would posit that it is for political gain. Mr. Sensenbrenner is saying things that he knows will get attention and that he knows will resonate with people who have never had the opportunity to study these issues. This serves nicely to illustrate my fears about politicizing the judiciary. It would be naive to think that politics don't play a part in some decisions about cases, but for the most part my experience leads me to believe that the judiciary is the least political branch of government. I feel that on balance, there is a great deal more intellectual integrity than in either the legislative or executive branches. I have a problem with anything which threatens that.
[UPDATE: I forgot to mention How Appealing as the source from which I learned of this article.]
