Posted by on February 17, 2016

Megan McArdle, whom I have previously described as the lonely libertarian over at BloombergView, has produced probably the best article ever to appear in this medium, which is pretty much relentlessly left-wing.  (So left-wing, in fact, that it makes me question Michael Bloomberg’s supposedly centrist politics.  Yes, I am sure that he thinks that freedom of expression requires a fair amount of leeway, but the deck is very heavily stacked against any conservative/libertarian views.)

Here is the link.  The article is entitled “Replacing a Justice Shouldn’t Be So Excruciating” and it makes the perfectly obvious, and perfectly valid, point that judicial appointments wouldn’t be the political battleground they have become if judges were actually restricted to their proper job. Here are some great quotes (although you should read the whole thing – it’s quick):

But I would also prefer to live in a country where the fate of the republic did not turn quite so sharply on which of nine unelected lawyers happens to die in a given year….

Far too many people on every side want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators. Why bother tediously lobbying senators and representatives, when you can simply win the White House, appoint a few judges, and get them to transform your most ardent desires into untouchable rights?…

The purpose of electing a president is therefore, in large part, the effort to stuff the court with enough judges to force your idea of what’s important on the other 300 million people with whom you share a country. The problem is that many of them disagree, and are eager to do their own stuffing, while simultaneously blocking yours….

Running more and more issues through the appellate courts, rather than struggling through the legislative process, has two terrible effects. First, it federalizes more and more issues, in an era when values and ideologies tend to be sharply partisan and geographically divided….The second problem is that by putting any issue beyond legislative debate, deeming it a decision for judges alone, you leave a large number of Americans who are passionate on certain issues feeling like they have no democratic recourse. It’s a recipe for extreme reactions, like voting for Donald Trump or worse.

Amen.  To all of it.

Roger Barris

Weybridge, United Kingdom

[1] There is not much competition.

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