- - Monday, October 27, 2014

Retired U.S. Supreme Court Justice Sandra Day O’Connor is right. Judicial elections where they exist in 39 states should be abolished.

They rest on sophomoric dogmas about justice that shortchange wisdom and the imperative of checks and balances to frustrate majoritarian oppression.

Judicial elections should be replaced with merit appointments modeled on the Missouri Plan. It contemplates a nominating commission selected by the governor to vet candidates and send three to five names for his consideration.

The governor’s ultimate nominee would require confirmation by the legislature.

Merit appointments are superior to popular elections to advance justice — the final end of government. The Founding Fathers opposed tyranny of the majority as much as monarchical tyranny. And they recognized that supreme intellect and character were indispensable to an enlightened discharge of public office, including the judicial function.

President Thomas Jefferson’s first inaugural address taught: “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”

In Federalist 55, James Madison, father of the Constitution and White House successor to Jefferson, underscored the propensity of an unchecked majority to degenerate into an unthinking mob: “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

John Adams recognized that the science of government had made little progress since time immemorial because rare intellectual and moral giants were required to discern the complex human dynamics that enhance rather than diminish justice. He noted that, “While all other sciences have advanced, that of Government is at a stand; little better understood; little better practiced now than three or four thousand years ago.

Celebrated Judge Learned Hand elaborated on the breadth of learning required to discharge the judicial office: “I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law to have a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books that have been specifically written on the subject.”

The Constitution’s architects thus provided for lifetime appointments of Supreme Court justices by the president with the advice and consent of the Senate to attract the requisite wisdom combined with the requisite virtue.

Alexander Hamilton explained in Federalist 78, “[T]here can be but few men in society who will have sufficient skill in the laws to qualify for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller who unite the requisite integrity with the requisite knowledge.”

Judicial elections were alien to the Founding Fathers. They risk majoritarian tyranny and sub-opitmal competence. A judge should not be a human weather vane, but a champion of justice irrespective of popular majorities.

Majorities crowned with limitless power are bad and dangerous. Alexis de Tocqueville elaborated in “Democracy in America”: “There is no power on earth so worthy of honor in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.”

But Jacksonian democracy’s deification of the common man, the spoils system, rotation in office and equality gave birth to widespread judicial elections. Its sound track was that the majority could do no wrong; and, that there is more intelligence and wisdom in a number of men than in a single individual, absurdly applying the theory of equality to the intellect of men. The twin precepts are as obviously false as the geocentric theory of the universe.

Popular will is a centerpiece of legitimate government. We do not want rule by Platonic Guardians however wise and honorable. It is thus altogether fitting that popularly elected legislative and executive officials exercise predominant power. But the judicial branch should stand athwart them and public opinion to prevent injustice to the minority.

That arrangement satisfies the Aristotelian precept of moderation in all things — including majority rule.

For more information about Bruce Fein, visit brucefeinlaw.

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