101 Politicians' or the People's Court?

Rick Duncan nebraskalawprof at yahoo.com
Mon Sep 12 04:50:13 PDT 2005

Hmmm. Since constitutional law is not really "law", but rule by a body of unelected lawyers who serve for life, I think Bobby might be on to something here. Perhaps Justices should serve no more than 2 six-year terms, and be required to run for office like all the other ambitious men and women who wish to govern their fellow citizens.
I would love to see the campaign promises--"if elected, I will vote to strike down prayer in public schools, eliminate "under God" from the Pledge, extirpate the 10 Commandments from the public square, set violent criminals free based upon procedural technicalities, and recognize homosexual marriage as equal in all respects to traditional marriage. I'm JP Stevens and I approve this message."
I'm with you, Bobby. Power to the people, right on!
Rick Duncan

RJLipkin at aol.com wrote:
        With great ambivalence I look toward the confirmation ritual beginning this afternoon. As someone professionally interested in the process and results I'm eager to observe. As someone who believes that constitutional theory and jurisprudence is fundamentally important, I yearn for questions and answers directed toward Judge Roberts' approach toward texts, theories, methodologies, institutional competence and authority, and so forth. As a civil libertarian, I'm grateful for the accessibility to such a critical process, that I can be there, virtually, of course. As an American citizen, who deeply loves his country, I am forlorn. 
        How can any constitutional democrat/republican be satisfied with a process designed to confirm or reject the next Chief Justice of the United States which so remarkably excludes me and millions of my fellow citizens? Yes, I know, the interests groups will inundate the media, distorting their messages beyond what's tolerable. I has some say in selecting the President and the Senators. I can make my voice heard through interests groups. I know all that.  But that's not democracy for me. Something more effective is required.
        OK, I'm finished complaining.  What's the solution?  Well, how's this: Why not inject into the present process a mechanism whereby the people (the electorate) has the final say?  After all "the strutting and fretting" over the strengths and weaknesses of Judge Roberts is over, why not require further and final confirmation by the electorate.  This mechanism, let's say, would be triggered two weeks after the final Senate vote.  The electorate would ratify or reject the Senate vote.  If rejected the process would begin again. The 101 politicians would be the penultimate stage of the process, and would serve as offering the final recommendation to the voters, which as the ultimate source of normative authority in our Republic would be responsible for the ultimate legitimation of the choice of the next Chief Justice. Why not? We can explore later whether Article Five or some sort of informal approach is needed here.  For now can we agree in principle that any ideal
 democrat/republican--observing from on high and for the first time--would query after the Senate vote: "Is that it? Isn't there a piece absent? When is the electorate's voice formally heard?"
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

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