101 Politicians' or the People's Court?

[RJLipkin at aol.com]

In a message dated 9/12/2005 2:12:17 PM Eastern Standard Time,  
crossf at mail.utexas.edu writes:

Well,  I'm not sure why the test would be what you consider to be humane  
values?  Why not what someone else considers to be those values?   But I think 
your question has already been answered.  Apparently you do  not consider 
capital punishment consistent with humane values.  There's  empirical evidence that 
elections make capital punishment more  likely.



Any system of  government will inevitably yield policies that I disfavor or 
that many of us  disfavor.  That's not the issue, or if it is, I suspect we're 
all lost. My  request for empirical evidence pertains to evidence showing how 
courts  generally do a better job at securing humane values than legislatures, 
 not whether in one case here, and another there, courts do a better job  
empirically. If courts do no better job than legislatures generally, then what  
in democratic theory convincingly shows that judges--unelected and with life  
tenure, and much more important, unaccountable--have a better democratic  
pedigree than legislatures? 
 
        The remark "A rational  populace could easily conclude that it wants 
to defer judicial selection matters  to those with more time and expertise for 
consideration of the candidates" is  true, but irrelevant. The question is 
whether democratic rationality sanctions  widespread delegation. It is 
question-begging in the extreme to state that since  rationality itself doesn't 
preclude delegation, democratic rationality also does  not preclude it.  It might be 
true that democratic rationality doesn't  preclude pervasive delegation at 
least not without the possibility of effective  revocation as with life tenured 
judges.  But that argument must come from  democratic/republican theory, not 
from one's intuitions about rationality in its  general or abstract form.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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