May. 24, 2005 - 20:38 MDT

IT'S PUT THAT WAY

Paul Campos is a professor of law at the University of Colorado. He usually has a column in The Sunday Post here in Denver. He had one this past Sunday that made me think a bit. In full:

Dogfight over an absurdity

"Imagine a society that makes many of its most important decisions in the following manner: a tiny number of citizens are anointed members of a priestly caste, which has the power to determine the society's most fundamental rules."

"The priests make these decisions by consulting ancient texts, written in an archaic language that remains incomprehensible to much of the laity. Nevertheless impious souls sometimes point out that the texts don't appear to answer the questions which the priests ask of them. This impression is reinforced by the fact that members of the priesthood disagree violently among themselves regarding what the texts actually say."

"Imagine further that, in this strange society, members of the priesthood are appointed for life by a legislative council that often has no clear idea what a priestly candidate's views are regarding the meaning of the ancient texts. This is a consequence of a custom that declares it improper to inquire too closely into a potential priest's views on such matters, when his fitness for the priesthood is considered."

"The oddest feature of this society is that it considers itself a model of democratic rule, even though it has placed a great deal of political power in the hands of an unelected, life tenured, and thoroughly mysterious priesthood."

"The recent struggle over judicial filibusters took place precisely because modern America resembles this imaginary society. Republicans recognize that nothing is more important to their political agenda than to appoint judges who will advance it. That's why they considered the extraordinary step of changing the Senate's rules of debate to force votes on judicial nominations that have been blocked by parliamentary maneuvering."

"Democrats of course, realize the same thing, which is why they were willing to go to extraordinary lengths to block certain nominees. (The heated battle that just ended is a prelude to the all-out political war that seems certain to break out later this year if Chief Justice William Rehnquist announces his expected resignation)."

"Everyone agrees that judicial appointments in general, and Supreme court apointments in particular, hold the key to shaping the political landscape on many crucial issues for decades to come."

"Acres of trees have already been sacfificed to debating the merits of judicial filibusters and the Senate rules that govern them. What's remarkable it that almost no one has commented on the absurdity of the system that makes such extreme tactics inevitable."

"The notion that unelected, life-tenured judges should have the ultimate say on matters ranging from the legality of abortion to the legitimacy of the New Deal fails to strike us as bizarre only because we are so used to it. That we're not supposed to press judicial nominees to reveal their views on these matters adds a particularly surreal touch to the proceedings."

"It's unclear why, other than from blilnd imitation of the past, we continue to allow judges to substitute their political views for those of our elected officials (and all judicial review of the constitutionality of government action is little more than this)."

"Short of getting rid of judicial review altogether, a more rational legal system would at least limit federal judges to a certain term of office -- say seven years -- after which the legislature could evaluate whether a judge's oracular pronouncements regarding such mystical matters as "what the constitution requires" were sufficiently sensitive to popular sentiment."

"Naturally this isn't going to happen (nothing proposed by reform-minded academics ever happens). Still, I believe that pointing to the absurdity of some of our practices has a certain therapeutic value, even if the practices themselves remain too sacred to consider altering any time soon."

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I am sure in my own mind that Mr. Campos made the comment once that he is tenured at the University of Colorado. Perhaps he should take a good look at the performance of some of the tenured folk in his University.

He refers to "popular sentiment" which makes me wish that all of our politicians and judges ignore popular sentiment and do right by our country. Popular sentiment can be so very fickle.

Further, it might be a good idea to make the term twelve years, by then anyone still on the bench should step back, take a deep breath and raise roses or something. It always makes me wonder if our government isn't in the hands of Alzheimer's victims.

And the Electoral College, seems to be an absurdity to me. A total one. Of course off the subject, still a bit on the absurdity of things.

I guess some form of tenured continuity should be accorded judges, but it seems to me that some judges in my state are on the ballots every time with the choice of retain or not retain. A little drastic for a federal judge perhaps but maybe retention of judges should be considered every presidential election.

It is ridiculous that no matter what a judge thinks he is considered an Activist judge by one side or another. I also think that the Supreme Court should not be forced to move over old ground. Things that have already been legitimized before such as abortion. I just don't think that if the current law does not appeal to you you should join a table pounding, flag waving group and hit the streets like many of the Europeans do.

But who am I ? One man, one opinion, one mouth flapping.

I don't always agree with Mr. Campos but when IT'S PUT THAT WAY . . . . . . . . . .

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