With regard to Rysdad’s comment about forum shopping, in rural judicial districts, and especially with the monetary restraints that have gone into effect in the last five years or so, forum shopping is a little difficult. Typically the four or five counties I work in are served by three judges in major civil and criminal cases and one judge in the smaller cases. Trial dates are assigned by an impersonal bureaucracy and you don’t know from one day to the next who your judge will be. When your selection of judges is that restricted and you are likely to be stuck with the same judge for months on end the prospect of having to deal with a judge who has taken a simplistic public position is fairly daunting.
Fortunately I work in a State that has an appointment-and-election –for –retention system. Trial court judges are appointed by the Governor from a short list submitted by a commission of lawyers and laypersons. The lawyers are elected by the lawyers of the judicial district and the lay members are appointed by the Gov., all for four year staggered terms. I have no doubt that candidates for the bench campaign for the appointment and make, if not promises, representations about there position on judicial issues. At least these are private representation, not made on the evening news, and the near majority of lawyers on the commission gives some insulation against the elevation of genuine fruit cakes to the trial bench. Once appointed the judge stands for retention every four or five years. The removal of a sitting judge is a rare thing and requires some pretty outrageous behavior along the line of soliciting sex for a lighter criminal sentence. Any removing is generally done by the Supremes on the recommendation of a panel of trial judges acting as an ad hoc judicial fitness commission after notice and public hearing.
December old horse, Roe v. Wade? That’s it? Nothing about the Connecticut contraceptives case; nothing about the Tennessee one-man-one-vote case; nothing about the New Deal cases and the regulation of interstate commerce; nothing about the recent decision that the unlegislated policy behind immigration laws checkmates the explicit language of the National Labor Relations Act?
Even assuming that Roe v. Wade is the outstanding example of judicial usurpation of legislative powers (and that is for from a consensus based contention), what on earth is there about that case that could be fixed by the full expression of opinions and objectives by candidates for election to state courts?
As always, the abuse by courts of fundamental ideas about fairness and intellectual honesty is outcome based decisions, not in judicial legislation. It is outcome based decisions that open campaigning for judicial posts encourages. What, you may ask, is an outcome based decision? It is a case in which the court figures out how it wants the case to be decided and then goes off around Robin Hood’s Barn to find a pretext to reach that decision by ignoring established facts and established decisions and statutes. You know you are facing one when the appellate court announces that there is no basis in law or fact for the trial court’s decision. It happens more often than you think on the trial level and on the appellate level…
However, the First Amendment is supposed to protect ALL speech, not just speech which can be proved to serve a useful purpose. The burden should be on the other side to prove that certain statements by judicial candidates must be censored, because they are a clear and present danger.
Slippery Slope-related Aside: I have heard advocates of CFR point out that although McCain-Feingold limits the ability to promulgate one’s opinion, it doesn’t completely eliminate the opportunity to do so. Their version of the First Amendment seems to be that it guarantees only some minimal amount of free speech. I sure hope that version doesn’t become the norm.
This is a mere assertion. Why is “its justification is a travesty”?
What the court said was that the legislature has no power in the first trimester, limited power in the second and considerable power in the third. How is that “legislating from the bench?”
Why should the legislature have exclusive and unlimited power over a private medical procedure?
I agree, at least am willing to be convinced, about the application of the Interstate Commerce clause. There are several cases, I won’t bother to look them up since I halfway agree, that look like quite a stretch.