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More Political Football With Judges

By Jack M. Balkin

Senator John McCain identified his legal priorities in an essay published today in the National Law Journal. The good news is that he promises to depoliticize the Justice Department, and to halt torture. The bad news is that, following what has become a Republican tradition, he demonizes judges:

Terrorists are not the only threat to public safety. Lax enforcement policies, judges who legislate from the bench and lack of support for law enforcement personnel all continue to force our innocent citizens behind the barred windows of their homes and allow criminals to roam free.

Did you get that? "Judges who legislate from the bench" are a threat to public safety who "force our innocent citizens behind the barred windows of their homes..."

Who are these dastardly judges? You can guess:

None of these law enforcement efforts will succeed without a judiciary that understands its proper role and its proper mission. Senator Obama would appoint liberal activist judges and supply them with greater sentencing discretion. I will appoint judges who will strictly interpret our Constitution. Senator Obama's judges would coddle criminals. I will appoint judges who will hold criminals accountable.

Demonizing judges is a cheap political trick. Since judges cannot respond to defend themselves, and judges are weak institutional actors who have no army and no money, to run against judges is political bullying. (Never mind that a substantial majority of sitting federal judges, including a majority of Supreme Court Justices, are Republican appointees.)

It is also irresponsible. The only capital judges have is their credibility. The cost of this tactic is a deterioration of our collective faith that judges try their best to apply the law. Without this faith, the rule of law cannot exist.

We all lose, conservatives and liberals (and everyone else) alike, when politicians indulge in attacks on judges.

Full post as published by Balkinization on October 27, 2008 (boomark / email).