Friday, July 18, 2008

Recall elections - UPDATED

Two problems intersected in my mind today: first, that it is very hard to hold judges accountable, and yet maintain political influence at a low level; second, that the possibility of recall elections tend to create cautious politics, even though they're very hard to implement. Those two things seem perfect for each other. Make appointed judges accountable to the people through recall elections. This would provide some measure of accountability for denying the will of the people, even when judicial "behavior" was not sufficient to merit impeachment (which is extremely rare--no justices, and only 0.4% of all Federal judges). The hushing effect, it seems to me, would in this case be the most beneficial aspect. The possibility of a recall would in itself inhibit legislation from the benches.

::UPDATE::
Here's how it would work: Every time you had a presidential election, all the Supreme Court justices would be on the ballot for recall. If recall of a justice was approved by a majority vote, comprising a majority of the states, the justice would be recalled. This would place the recall mechanism above political machinations, as few voters would vote to recall for political reasons when they had no guarantee which candidate would win the election and appoint the replacement justice. This would also prevent the recall from being a rash decision, as the possibility of recall would happen only every four years.
::UPDATE::

10 Comments:

Anonymous Dominus Sit Illuminatio Mea said...

Interesting. I ultimately don't find this suggestion to my liking, however; it over-politicizes the bench, to my mind. I find myself agreeing with Tocqueville, who noted that the bench is an important source of stability in American politics, making up in many regards for America's lack of an aristocracy. This is not to say that I view judges as aristocrats, or that I agree with every opinion issued from the bench (far from it, though I believe this is rather due to faults in legal education and the legal profession generally), but I do view them as playing a crucial stabilizing and countermajoritarian force in our system.

[Recall elections]... would provide some measure of accountability, but only in the most egregious cases, because of the sheer difficulty of implementing a recall election.

I believe we already have a system for providing accountability in the egregious cases: it's called impeachment; and it's far less political, since it is confined to cases of high crimes and misdemeanors.

The possibility of a recall would in itself inhibit legislation from the benches.

Here we get to the fundamentals of our disagreement, I believe. One can oppose "legislating from the bench" for at least two reasons: (1) one finds it illegitimate because of its lack of democratic bona fides, or (2) one believes it will on balance yield pernicious results. Your write that the possibility of recall would inhibit legislation from the bench, but this isn't strictly true: it will only inhibit a judge from legislating those principles that go against his interpretation of the latest opinion polls. Moreover, since recall elections are expensive in terms of time and effort, it will likely only inhibit rulings that brazenly go against the opinion polls. Objection (1), therefore, is not satisfied: if proposition X is popular, but for whatever reason has not been adopted by the legislature, a judge will have nothing to prevent him from enacting X from the bench. The outcome may be satisfactory from a democratic perspective--X is adopted--but the process is illegitimate, if one assumes that satisfying a democratic process is necessary for legitimacy.

We are left, then, with the consequentialist objection: legislating from the bench will yield pernicious results. As has already been asserted, however, the recall will only deter that judicial legislation that is unpopular based on the latest nose-count. The argument must therefore be that only unpopular policies implemented from the bench are pernicious (because the beneficial nature of the recall election is assumed arguendo). This in turn assumes that the people are always the best judge of the wisdom of legal and political policy. Based on your post on representation, you may agree with this. I do not. See my post there, for more.

12:31 PM  
Anonymous Roger Kovaciny said...

The bench is already over-politicized and they make laws--liberal leftist laws--assiduously, sometimes so egregiously (as in the case of the Ninth Court of Appeals) that they have to be reversed at fairly frequent intervals.

They are NOT a source of stability in American politics but rather the reverse. Roe vs Wade, agree or disagree, was the most poisonous political act since the Civil War because a five-to-four majority imposed on the country by fiat what should have been debated and legislated, differently in different states. The same extremely radical action happened in California two months ago when a 4-to-3 majority imposed on California what its voters had explicitly rejected, the imposition of same-sex marriage, the most radical change in America since the Revolution and the most radical change in American society ever.

4:23 AM  
Blogger Noumenon said...

This would place the recall mechanism above political machinations, as few voters would vote to recall for political reasons when they had no guarantee which candidate would win the election and appoint the replacement justice.

Few elections are as close as the ones in 2000-2004. Strong enough exit polls could result in every liberal justice getting recalled at once.

It would probably be worth voting to recall the most liberal justice every election, since even a liberal president would nominate the average liberal justice to replace him.

7:46 AM  
Anonymous Dominus Sit Illuminatio Mea said...

The bench is already over-politicized and they make laws--liberal leftist laws--assiduously, sometimes so egregiously (as in the case of the Ninth Court of Appeals) that they have to be reversed at fairly frequent intervals.

Sometimes. And sometimes they overturn liberal, leftist laws in favor of individual rights entrenched in the constitution (e.g. D.C. v. Heller). The DC gun ban was presumably popular--it was passed through the democratic process. Would the voters of DC vote to recall the federal judges who decided in the favor of the second amendment? Perhaps. But would this not strike at the very heart of constitutionalism? We entrench certain values in a constitution precisely because we wish to insulate them from the democratic process--no constitution is necessary to allow the majority to rule; one need only give all power to a legislature, or build a town hall, or many town halls, or perhaps an online town hall. And furthermore, I submit that we trust judges to enforce these constitutional norms precisely because judges, once appointed, are insulated from the tug-and-pull of everyday politics.

To take your example of abortion, many Americans--perhaps a majority--seem quite comfortable with abortion (which alone should be sufficient to prove my contention that the nose-count is the wrong place to look for morality). If the Supreme Court overturned Roe v. Wade, would there be calls for their recall? Admitted, Roe v. Wade is an anti-democratic decision; is that really why religious conservatives disagree with it? Would we disagree with a Court ruling that the unborn are protected by the Due Process clause of the 14A? Perhaps some would; many would not. The argument that unborn children are "people" within the meaning of the 14A is at least colorable, depending on your interpretive philosophy. And yet if the Supreme Court issued an opinion saying as much, the calls for their recall would become legion.

[Courts] are NOT a source of stability in American politics but rather the reverse. Roe vs Wade, agree or disagree, was the most poisonous political act since the Civil War....
I disagree with Roe v. Wade as an incorrect, even pernicious, interpretation of the constitutional text. To paraphrase John Hart Ely, the decision was not constitutional law, nor did it pretend to be. But one could just as easily say that gun rights are an issue that should be debated and legislated in each state. Or, take the issue of euthanasia. I presume for the sake of argument that the elderly and infirm are indisputably protected by the 14A due process clause, and that the Supreme Court would invalidate, as unconstitutional, any state law mandating euthanasia. But could one not say that this, too, is a politically controversial decision that should be debated and legislated on at the state level?

The western judicial process inherits from its common-law roots a stabilizing nature. While the democratic nose-count is vertiginous, changing with each political trend, the judicial process is painstakingly--sometimes maddeningly--gradual. This gradualism--and stability--can be seen even in the California homosexual marriage ruling: if homosexual marriage had been adopted by the legislature, it would be subject to modification at the next election; adopted through constitutional interpretation, nothing less than the sustained, overwhelming will of the people, as expressed through constitutional amendment, can change it. Like it or not, the effect is nothing if not stabilizing.

11:31 AM  
Blogger Octavo Dia said...

making up in many regards for America's lack of an aristocracy.

Hey, the Senate already has lifetime appointments, like in Massachusetts. :-)


it's called impeachment;

A quick Googling shows that only 0.4% of all judges have been impeached, compared to 4% of all presidents. Either judges are extremely well behaved, or impeachment is ineffective.

Besides, there are times when you want to remove a judge for making consistently bad decisions. Malfeasance is not the usual cause of employee dismissal, after all.


the recall will only deter that judicial legislation that is unpopular based on the latest nose-count.

I think my update, by delaying the recall until the general election, addresses this concern (as well as the cost concern).vtd

9:01 PM  
Anonymous Dominus Sit Illuminatio Mea said...

A quick Googling shows that only 0.4% of all judges have been impeached, compared to 4% of all presidents.

Well, I'm afraid this leaves us at an impasse. I view the low number of impeachments as indicative of the insulated nature of the Judiciary, which, in turn, I would characterize as one of it's greatest enduring strengths. You view it as the sign of an ineffective system, since you view the insulation of the Judiciary as pernicious. But this gets us nowhere; it merely restates what we were initially arguing about.

During the Jefferson administration, the failed impeachment of Justice Chase set a precedent that judges are not impeachable for ideological reasons, which accounts, at least in part, for the low impeachment statistic. Of course, that doesn't account for the disparity between Justices and Presidents, who are also, at least theoretically, only impeachable for "high crimes and misdemeanors." This isn't the place to attempt a study of the disparity, but my instinct is that, due to the fact that the Court is a group decision maker, an individual Justice has a much lower profile than a President, who, by the explicit intention of the Framers, is held to a higher standard of accountability because of her isolation. This might account for the disparity.

"the recall will only deter that judicial legislation that is unpopular based on the latest nose-count."

I think my update, by delaying the recall until the general election, addresses this concern (as well as the cost concern).


Actually, I don't believe it does. My original argument began by outlining the two reasons I saw for the recall device: (1) the formal argument, that the decisions of judges lack validity, in some sense, because they failed to pass through a democratic process; and (2) the consequentialist argument, that the decisions of judges, when they run contrary to the democratic faith, lead to pernicious results.

The argument then proceeded to point out that the recall device would only invalidate judicial decisions that were unpopular with a majority or supermajority. The popular judicial decisions would stand, but without having passed through a democratic process. I therefore concluded that the recall device failed to address the formalist objection.

That was the argument I originally articulated. In retrospect, I think I was being a little too cute. This "strong form" of the formalist argument now strikes me as actually something of a caricature. A more defensible "weak form" of the formalist objection might go something like this:

Judicial decisions not only are unreversible by the people, but are unreviewable by the people as well. A recall election would allow the people to dispense with judges who they disagree with; obversely, those judges who the people agree with will not be recalled, and their opinions will therefore be legitimated by the tacit imprimatur of the people.

My critique of this "weak form" formalist argument would go something like this. If the focal case of democratically legitimate decision-making is town-hall democracy, or, more realistically, the popular referendum; and the focal case of democratically illegitimate decision-making is the dictator-for-life, then there exists something of a continuum between these two extremes. Now, admittedly, recall-able judges are closer to the focal case of pure democracy than judges appointed for life, but even the recall is not within the focal case. Indeed, if your design is to set up a system that approaches as close as possible to the focal case of pure democracy, recall of judges is actually a pretty crude tool. Since the proponent of the recall must therefore admit that direct-democracy is itself not desirable in its pure form, he must acknowledge some countervailing force that councils in favor of a less democratic system. But, if we're dealing in shades of legitimacy, who's to say that your shade is any better than mine?

Finally, it's important to note that both the weak and strong forms of the formalist argument object to the recall device because, while it results in a more accountable system, the system is not accountable enough. Your update actually makes the system less accountable, therefore it does nothing to address the formalist argument.

Finally, the consequentialist argument. This is essentially a clash of epistemologies: I view the nose-count as a poor source of political and practical wisdom, while the democrat views the nose-count as the ultimate source of political and pracitcal wisdom. Your updated system does approach somewhat closer to my point of view. But again, if all political systems are viewed on a continuum, the updated version of the recall device actually moves it slightly away from the focal case of pure democracy. It must, therefore, be trying to strike a balance between democracy and some countervailing force that cautions in favor of less democracy. But the judicial system, as it stands now, is also trying to strike that balance. Who's to say you've got the balance right and the current system has it wrong?

4:35 PM  
Blogger Octavo Dia said...

Few elections are as close as the ones in 2000-2004. Strong enough exit polls could result in every liberal justice getting recalled at once.

Two options as to how to work around this problem. Option 1: follow the Senate approach and only allow a portion to be recalled at any one time.

Option 2: allow people only a limited number of recall votes, so there will have to be some coordination in the electorate as to which justices to recall.

8:35 PM  
Blogger Octavo Dia said...

Re: Dominus Sit Illuminatio Mea

no constitution is necessary to allow the majority to rule;

It is more of a shift along a median. Elites entrench themselves until some force expands the power base again. Usually revolutions, but democracy has reduced the need for those. Hydraulic empires would be the exception.

precisely because judges, once appointed, are insulated from the tug-and-pull of everyday politics.

At the level of the Supreme Court, at least, I don't think that the judiciary can be anything other than political. Recognizing its weaknesses would be better than denying them.

To take your example of abortion, many Americans--perhaps a majority--seem quite comfortable with abortion (which alone should be sufficient to prove my contention that the nose-count is the wrong place to look for morality).

This is hard for me to support, as people's opinions are shaped by their circumstances. Call it cognitive dissonance, or whatnot. People like to think that they're good people, and since we abort millions, that must be good, or they'd be bad people.

7:53 PM  
Blogger Octavo Dia said...

Re: Dominus Sit Illuminatio Mea

I view the low number of impeachments as indicative of the insulated nature of the Judiciary, which, in turn, I would characterize as one of it's greatest enduring strengths.

I find it highly improbable that anyone, no matter how thorough the vetting process, can hire the right person 99.6% of the time. From what I've read, that's a tenth as often as other professions.

8:02 PM  
Anonymous Dominus Sit Illuminatio Mea said...

At the level of the Supreme Court, at least, I don't think that the judiciary can be anything other than political. Recognizing its weaknesses would be better than denying them.

I'm not sure what this means.

If it means that some small percentage of cases decided by the Supreme Court will almost inevitably provoke spirited public controversy, I think I agree. Though the number of these types of cases is actually quite low, it does seem inevitable that controversial cases will find their way to the Supreme Court. In fact, this is by design--the Court doesn't bother itself with the easy cases; it looks for issues that have provoked a circuit split.

Moreover, history bears this out. When Justice Chase was impeached (but not convicted) in 1804-05, it was primarily (if not avowedly) for making political statements from the bench, when charging juries. Tocqueville observed, a few decades later, that in America almost all political question became, sooner or later, judicial questions. The Yazoo land scandal (Fletcher v. Peck), Aaron Burr trial, and slavery (Scott v. Sandford) are other early examples.

The Court, it seems, could only escape this political controversy by issuing narrow holdings on minimalist grounds (as the current Chief Justice aptly put it, "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more"). But this solution seems to be something of an equivalent to solving the problem by resigning--the Court wouldn't do much at all anymore, but it would do it well, and without criticism.

On the other hand, if the assertion means that the Supreme Court can't be anything else than political in the sense that it's members are held professionally responsible for the political dimensions of their decisions, then I'm afraid I can't agree. The Court has been operating the contrary way for well over two centuries, and it doesn't seem to have suffered for it.

I find it highly improbable that anyone, no matter how thorough the vetting process, can hire the right person 99.6% of the time. From what I've read, that's a tenth as often as other professions.

What is this inference trying to establish? What do you consider "hiring the wrong person"--hiring a judge who turns out to be incompetent, or hiring a judge who disagrees politically with a majority of voters?

In the first case, I am by no means arguing that we should keep incompetent judges on the bench, so long as incompetence does not become a pretext for removing judges for their political opinions (which actually strikes me as pretty hard to guarantee). In fact, there's some disagreement about whether impeachment is a good device for removing incompetent judges or not. The first judicial impeachment, of Judge Pickering, is a case in point. Judge Pickering was clearly, indisputably insane. There was some disagreement, however, as to whether or not insanity constituted a ground for impeachment (constitutionally, the only grounds can be "high crimes or misdemeanors." Legally, insanity is neither). In the end, Pickering was impeached--and convicted--but there was widespread agreement that the case was an odd one, and didn't stand for a precedent.

It's the second proposition--that Judges can be removed because of the political dimensions of their decisions--that I'm arguing against.

This is hard for me to support, as people's opinions are shaped by their circumstances. Call it cognitive dissonance, or whatnot. People like to think that they're good people, and since we abort millions, that must be good, or they'd be bad people.

Again, I'm not sure exactly what this statement is trying to establish. Does it mean to contend that (1) a majority of people in fact aren't comfortable with abortion (an empirical proposition), (2) that the nose count is a good place to look for morality (an epistemological proposition), or (3) something in between (a hybrid proposition)? As for (1), I haven't looked at the polling data lately, but I think it would be hard to establish that there does not exist a large number of people actively contending for abortion, and an even larger number of people who are at the least ambivalent towards the practice. But once that is admitted, the only way to keep (2) from being called into serious question is to argue that the case for abortion is actually a pretty good one.

1:13 PM  

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