101 Politicians' or the People's Court?
RJLipkin at aol.com
RJLipkin at aol.com
Mon Sep 12 11:35:34 PDT 2005
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.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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