Dumbing down the courts: How politics keeps the smartest judges off the bench

Dumbing Down the Courts CoverMost Americans believe an appointment to the bench is the stellar achievement of the smartest and most accomplished legal scholars and lawyers.  Becoming a judge is thought to be the pinnacle of a legal career.

If you’ve ever been personally involved in a lawsuit you may have had that bubble burst in a dramatic sort of way.  If you believe that judges are overstepping their boundaries by making public policies that should be made by politicians subject to our ability to vote them out of office, then you may have questioned whether judges really are the best and brightest of their professions.

In fact, a stellar resume and a record of achievement as an advocate or scholar may in fact be a roadblock for a judicial candidate.   The politicians who appoint them don’t necessarily want brilliance on the bench.  A smart judge might be an independent judge.  The gatekeepers of power don’t want that.  They want political obedience and conformity to the liberal agenda.

There used to be and there’s supposed to be, the idea that judges decided only “cases and controversies” and don’t make public policies on such things as abortion, flag burning, marriage, or Christmas displays on a local court house lawn, or any other matter that people used to think of as left to the decisions of their elected representatives. That how a republican form of government is supposed to work.  If the elected officials make policies the people don’t like, the people can vote them out.  That policy is dying but not yet dead.  It showed signs of life in Colorado last week when two liberal Democrats were thrown out of the Colorado General Assembly by voters in a recall election.  But Democrats have been working since the 1930’s to erode that power away from the people.

They are doing this because liberal Democrats, which accounts for almost all Democrats these days, can no longer get most of their vacuous bromides for destroying personal freedom passed into law through the Democratic process. The simple solution, if the public refuses to vote for more liberalism, is to appoint judges to the bench who are willing to shove unwanted policies down the throats of the American people. Judges’ rulings from the bench don’t have to be voted on. The enormous power of judges to institute new public policies by judicial decree was once recognized to be dangerous to liberty and was therefore vigilantly held in check.

There was once an unwritten judicial doctrine known as “judicial restraint” whereby judges restrained themselves from taking or deciding cases involving “political questions.” Deciding cases and controversies by the application of legal principles was their mission and, for the most part, judges across this country respected and upheld the principle of judicial restraint.  It was, more or less, a matter of honor.  If a case presented to the court for decision was thought to consist mainly of public policy issues, those were considered to be political questions beyond the jurisdiction of the court.

Another unwritten legal doctrine was that anything a court did that exceeded its jurisdiction was held to be a nullity. Thus, cases involving political questions were rejected by the judges. Judges were sensitive about their jurisdictional limits and diligently avoided cases that might take them beyond that boundary.  The litigants would be told to take the matter up with their elected representatives in Congress or the state legislature.

That worked well while Democrats were in control of politics in America. Then Democrats could impose their will on their fellow citizens because most of the their fellow citizens were well snookered into believing all the propaganda that supports liberalism.

But about 50 years ago a conservative movement arose which raised lots of questions about liberal public policy. People began to lose trust after such things as court-ordered school busing proved to be a disaster. When people saw that the War on Poverty was not reducing poverty and was in fact either keeping poverty at current levels or increasing it, as well as breaking up families, public support for grand liberal schemes began to rapidly decline.

Democrats maneuvered around the voters and found that by getting the right judges on the bench they could save their wasteful and failed programs by using the awesome and unchecked power of judges. That worked well for a while. Actually, it’s still working but people are starting to notice and they are finding they don’t like it. They are beginning to understand that it leads to tyranny by judicial decree.

The timing is right for John Lott’s book.  Click the image of the book to go to its Amazon page. A Washington Examiner book review is here.