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February 16, 2009


Brendan's closing parenthetical provides an interesting example of how liberal opinion has shifted over the last forty years. I was in law school at the end of the Warren Court and the beginning of the Burger Court. In those years hardly anyone would have said it was not the Supreme Court's role to correct poor policy choices by states. Rather, considerable ingenuity would have been applied to discover a Constitutional rationale for imposing on the states a mechanism for judicial selection, a rule concerning contributions to judicial elections, or at a minimum a rule concerning recusals in cases involving contributors. And more than likely, the Court would have adopted that rationale.

Forty years of movement in the direction of strict construction has resulted in even center left observers like Brendan conceding that there are wrongs for which no remedy exists under the U.S. Constitution.

Which probably means it's about time for the pendulum to swing.

The problems Brendan cites also apply to elected legislators. And, nobody expects a Congressman to recuse himself from a vote that helps a campaign donor. That's why conservatives want government not have so much power to control so many parts of our lives.

I love legal elections, because judges also have to face up to the reality of dissatisfaction due to high crime rates, police brutality, and high taxes to fund public defenders. Yes, it is supposed to affect their decisions. Elections are preferable to widespread asassination. How else to you remove the rascals?

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