The "tipping" in the "tipping point" is gaining momentum, as the Musings of a Bluegrass Barrister discusses ideology, our courts, and campaign speech.
This was no mere "musing" as he analyzes the public's right to know in a world of judicial activism.
Other than audaciously disagreeing with me on my "suggestion" for more rigorous judicial appointment procedures and recall elections (wink, wink), the comments are well-thought out and encourage debate on these issues. If not now, then when? (Oh yeah. I used that line already).
When it comes to judicial speech, the candidates can say anything or nothing, and the voters can ask for everything or nothing. The answer is at the polling booth, and that folks is the way elections work.
One writer/speaker has put it this way: if you have judicial elections then expect to see politicians; if you have judicial appointments, then expect to see politician's friends.
Here is a link to the posting - What if ideology did not matter?
And here an extract or two of his remarks which were apparently prompted by the judicial questionnaires being circulated in the midst of the current judicial election cycle.
We now live in a country – and a Commonwealth – that is seemingly willing to subordinate the popularly elected legislative and executive branches, who are elected to make our public policy, to the judiciary. So long as that is the case, the public needs to know – and has a right to know – what is the supreme public policy and ideology that may at some point supplant that enacted into law by the “political” branches. For so long as the judges’ ideologies, and their personal beliefs as to what is “appropriate” public policy, are allowed to supplant the text and/or original meaning of our state and Federal constitutions and laws, then the electorate should have the right to demand accountability from their judges for those ideologies and beliefs. And by allowing candidates to recite little more than their names and resumes, the electorate’s right to know what policies will be enacted or declare in their name is ill-served.
Adopting Mr. Stevens’ suggestion of appointing Kentucky’s judges instead of electing them will not solve this problem. It will only shift the inherent tension between the legislative and judicial branches from the ballot box and campaign trail to the legislative confirmation hearings. Witness the politics involved in the U.S. Senate and its Judiciary Committee over the confirmation of judges for a foretaste of what would happen if Kentucky moved away from electing its judges. Different forum; same result.
We live in a representative republic, where the electorate will demand accountability for political decisions made in its name. For so long as the judiciary continues down this path of substituting its political judgment over that expressed in our constitution and enacted into our laws, the “political” nature of Kentucky’s judicial campaigns will continue. The judicial branch cannot at once decry the “political” nature of the current judicial campaigns and yet continue to make the sort of decisions that should be left to the political branches. This crisis is not one involving too much judicial speech; it is a crisis of unrestricted power of judges to shape our public policy. This crisis – if you believe it is one – is one of the judiciary’s own making. It is therefore now up to the judiciary to accept responsibility for it and to show us the way out.
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