Federal Judiciary

New York v. Torres

By AndrewHyman

I previously mentioned this strange case in which plaintiffs challenged New York's method of selecting judges as a violation of the First Amendment. Yesterday, SCOTUS unanimously rejected the challenge, and rightly so. But four of the justices (Breyer, Kennedy, Souter, and Stevens) took the opportunity to express their concern about the notion of judicial elections, on policy grounds, seeing as how judicial elections can turn judges into run-of-the-mill politicians. Ed Whelan finds that concern ironic, coming from four justices who have behaved in the past as legislators.

Justices Kennedy and Breyer additionally implied that they could strike down the New York election procedures if the case had been pleaded correctly: "The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence....[but] the present suit does not permit us to invoke the Constitution in order to intervene." In other words, "come back with a Due Process argument instead of a First Amendment argument, and then we can legislate from the bench." So restrained of them.

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Full post as published by ConfirmThem on January 16, 2008 (boomark / email).