101 Politicians' or the People's Court?

[RJLipkin at aol.com]

In a message dated 9/12/2005 6:49:56 PM Eastern Standard Time,  
crossf at mail.utexas.edu writes:

If the  public doesn't have a say in outcomes, I'm not sure what you mean by  
accountability-during.



To be sure, two conceptions  of judicial independence are involved here: (1) 
complete independence: the  electorate should have no contact with the 
judiciary because any contact might  influence judges decisions, and (2) limited 
independence: the electorate should  have no contact designed to affect a parti
cular case before a  judge. Contact judges or justices about general questions or 
comments about  constitutionalism, judicial role, governmental power, and 
individual rights.  Perhaps using how some see the confirmation process would be 
helpful here.   You can ask a nominee about his or her judicial philosophy, 
but no questions  about particular cases likely to come before the Court. The 
public might have a  "say in outcomes" where that means the Court is 
appropriately influenced by  general arguments about constitutional meaning made by the 
public. Of course, it  is much easier to have a bright line rule here as in 
(1), but for me that  compromises accountability. Adopting (2) is more difficult 
to apply and  enforce.  But gains in accountability always have a cost.
 
        I endorse (2), not  (1). (1) has a "rule of law" problem, if that 
means in this context  influencing judges to follow improper motives or 
influences and not the  law.  But I don't see that (2) has a similar problem, at least 
not  inevitably. Nevertheless accountability-during for federal judges might 
be  different from accountability-during for the elected branches. That said,  
accountability-in and accountability-out do not seem to risk any similar type 
of  "rule of law" problem.
 
Bobby
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20050912/00904d7a/attachment.html