April 10, 2017

MY USA TODAY COLUMN: Judge Richard Posner’s unimpeachable honesty; Or, why we should start electing federal judges.

Posner is mostly just being honest. Judges do what he describes all the time, they just usually cloak it behind a smokescreen of legalism that makes it at least somewhat deniable. Indeed, that’s basically what the majority opinion does.

But the job of updating statutes is the job of legislators, not judges, and what legislators have over judges in that regard is that they are elected. Judges can — from within their insular world of life-tenure employment and elite-legal/academic socialization — guess at what contemporary social mores are. Legislators, by virtue of standing regularly for election, don’t have to guess.

So in light of Posner’s new conception of the judicial mission, I have a modest proposal of my own for updating what has become obsolete: Let federal judges stand for election themselves. I’m prepared to exempt trial judges, who have fewer opportunities for such sweeping pronouncements, and whose decisions in criminal trials, for example, probably shouldn’t be affected by electoral prospects. But for those who aspire to function as Platonic Guardians, I think a little more rootedness is called for.

You should read the whole thing. But you knew that, right?

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