A few days ago I mentioned that I often think in pictures.
Last night, while I was reading the article, "Call of the West: Rein In the Judges," in the L.A. Times, the picture that came to my mind was a two-panel cartoon.
Panel 1 shows a mob about to hang somebody. A judge, standing in the background, says, "The accused is entitled to a fair trial!"
Panel 2 has the leader of the mob answering the judge by saying, "Okay, you can have your fair trial. But you had better make sure he's found guilty or you're next."
This is the attitude that I see driving a movement reported in the Los Angeles Times.
Mobocracy and Tyranny of the Majority
These ballot initiatives have the same practical effect of the mob telling the judge, 'When you make your decisions, you should not be looking to the law books and the principles of justice in making your decisions. You should be looking to public opinion polls and the will of the mob - whatever that will may happen to be."
Of course, the judge will still have to pretend to look at the law. He will no doubt be expected to go through precedent and cherry-pick his data to 'justify' its conclusion, the way the Bush Administration cherry-picked the data it used to 'justify' its invasion of Iraq. Yet, they will know at the start what conclusion they will have to reach in order to make the mob happy, and their work will be in finding some distorted interpretation of the law that actually supports that conclusion.
It will not matter how unreasonable the logical leaps from premises to conclusions are. Let's not pretend that the mob is actually going to sit down and read the opinion. They are simply going to pay attention to the holding. If they get the holding they want, they will assume that the reasoning must be sound. The judge could have written '2 + 2 = 5' into his opinion - if the mob wants to see '5' as the result, they will not protest how he arrived at it.
Some may question my use here of the term 'mob' and the way I characterize them to describe the will of the majority. It would certainly be unreasonable for me to say that the majority is always a mob and that it never acts rationally. However, that is not what I am claiming. It's sufficient for my claim that the majority sometimes takes on the role of an unthinking, unjust mob and, if there is no check on its power, it can sometimes inflict tremendous injustice on others. That much, at least, is true.
Checks and Balances
In this blog, I have often written about the virtue of a system of checks and balances. The founding fathers recognized this. They did not create our system of government on the assumption that its leaders will always be virtuous. They created our government on the assumption that leaders are seldom virtuous - that government is a necessary evil, and the wisest course of action to take would be to establish a system whereby one person's shortcomings is checked and balanced against those of others.
A President with unlimited power to send out squads to arrest and detain, without a trial, whomever he wants will easily attract those who want to arrest and detain their political opponents. We check this power by requiring the President to obtain warrants from an independent judiciary, and allow him to arrest and detain only those people that the Congress tells him he may arrest and detain.
Our system already has two branches of government already subject to mob rule - the legislative and the executive branches. The purpose of the judiciary is to check mob rule with a flavor of justice. One of the things about justice is that it sometimes yields results that the majority does not like. If the majority wants to treat the minority unjustly, stopping the majority from wronging others - stopping them from doing this evil to innocent victims - is going to be unpopular. The only people who can perform this vital role is somebody who does not have to appeal to the public will for his power.
It is true that if you give judges any power, that they will sometimes abuse that power. It is true that when you give anybody power, they will sometimes abuse that power. However, this needs to be considered in context with the need for checks and balances.
In order to create checks and balances against the abuses of Person A, you have to give the power of checks and balances to Person B. Person B will tend to abuse that power, but against that you have the checks and balance of Person A, or another Person C. If we get tired of B's abuse of power, and we take power away, then we are left with nothing to check and balance the abuses of Person A. Unchecked, Person A becomes much more of a threat.
The Consequences of Election
If judges are elected - if we make the judicial branch of government like the legislative and the executive branch, then we would be foolish to expect that people will quit acting like judges, and start acting like legislators - campaigning for public office with every decision that they write.
We can see what this has done to the legislative branch. Legislators devote their time and effort to reading opinion polls and sell their lives to the marketing and PR group. They measure every vote they make against the will and the pocketbook size of the groups their decisions effect. This inevitably means that judges will be sitting in their offices thinking, "If I piss off this potential campaign contributor, will I be cutting my own political throat?"
We may have mental images of the noble Judge who ignores politics and seeks to do the right thing - just as we like to imagine the honest and forthright politician. However, these people only exist in Hollywood movies and other fantasies. They only exist in movies because the author of the script can write, "The crowd cheers," at all of the appropriate places. The script writer can ignore the work of the public relations firms spreading convincing lies and the back-door deals that are a part of real life.
When judgeships are made like legislative seats, then judges too will become politicians.
It is not as if judges themselves have absolute power. Every judge faces a system of checks and balances themselves. In part, this is determined by the fact that the other parts of government must decide who becomes a judge. More importantly, no court stands alone. Every judicial opinion can be sent off to some other court, who can 'check and balance' the power of the first court. Even the Supreme Court faces another court of appeal - the Executive, the Legislature, and the People through the power of Constitutional Amendment, Impeachment, and enforcement.
The idea of judges acting like dictators is a myth. There is no sensible use of the term 'dictator' that has us applying the term to people who must submit their opinions to somebody else (a higher court) for review - somebody who has the power to rewrite or even nullify them.
People naturally seek unlimited power - without the inconveniences of others telling them that they are wrong and that they cannot do that which they want to do. It is only natural to chafe against these restrictions and to seek to have them removed.
However, history tells us that when we allow any individual or group to remove these limitations to power, that they inevitably become tyrants. Morally and socially, the consequences are disastrous. It is far better to leave these limitations in place.
These ballot initiatives are attempts by groups to remove the checks and balances against abuse of power that our founding fathers thought useful in preventing a type of tyranny – a tyranny of the majority. Tyrants do not like limitations on their power, so these tyrants are seeking to remove those limitations. Naturally, they assure us that we can trust them – that ‘tyranny’ may tempt others, but not them. We can remove the checks and balances that they are forced to endure and we will actually be better off because of it – they tell us.
Yet, every time these chains are removed in history, those who gain unchecked power as a result turn into monsters, with countless innocent people made to suffer as a result.
Can majorities actually turn into tyrannies? You cannot name a period in history in which this was not the case. Even Hitler was loved by the people. In much of America, its citizens were willing to fight and die en masse if necessary for the right to own slaves, governments fell if they refused to take land from the Native Americans, Japanese internment has the support of over 80% of the west-coast residents, and Jim Crow laws were exceptionally popular.
The astute reader will note that the system of an independent judiciary that was not at the whim of public prejudice did not prevent any of these abuses. Even with an independent judiciary, there was slavery, there was a near-genocide against Native Americans, there was Japanese internment. I am going to suggest that these horrendous parts of the American history are proof that when it comes to deciding whether the independent judiciary is too powerful or not powerful enough – that ‘not powerful enough’ has a better fit with the historical record.
We need one political body that is set up in such a way that it can act as a check and a balance against a tyranny of the majority - against the abuses and usurpations of mobocracy.
We also need at least one political body that can render political decisions without always asking special interests groups what it should do - or making promises to special interest groups in order to get elected - or seeking office only because of what they will then have the power to do for the sake of those special interests groups they support.
Also, I would like to note in passing, how people complain about 'liberal, activist judges' when, for 36 out of the last 48 years, Republican Presidents have been appointing judges and, for the most recent 8 of the 12 years that a Democratic President appointed judges, a Republican congress had 'advice and consent' power and obstructed over 100 of those appointments.