Dispatches from the Creation Wars

Why I Like the Judiciary

I was watching TV last night and a campaign commercial came on for Debbie Stabenow, the Democratic incumbent US Senator from Michigan. Like most campaign commercials, it was just a medley of scenes of her shaking hands and talking to people with the appropriate look of concern on her face. And the voiceover features her talking about how great Michigan’s workers are and how they can compete with anyone. It ends with her saying, “This isn’t about Republicans and Democrats, it’s about our Michigan way of life, and I’m fighting for it every day.” You can actually see the commercial on the front page of her campaign website.

When it finished, I had a bit of an epiphany on why I have so much more respect for and faith in the judiciary than in the elected branches of government: because they don’t have to shovel out this kind of absolutely meaningless drivel in order to keep their job. Yes, they do have to build connections within the parties and that inevitably involves doing the bidding of idiots at some point along the way. But once on the bench, they’re there for life and they don’t have to pander to a barely literate and predominately ignorant population by showering them with shallow flattery, making false promises, and the like.

That lack of having to go through the constant motions of appealing to the public is an enormous distinction. No one of genuine intelligence and dignity could possibly look in a camera and repeat the kind of idiotic pablum that elected officials have to repeat dozens of times a day, every day for their entire career in office. Every election campaign in the nation consists of little more than a battle of stupid catchphrases and cliches, all of them completely devoid of meaning. Anyone with an IQ over room temperature immediately glazes over when asked to choose between the candidate who wants to “get America moving again” and the one who wants to “invest in America’s future.”

What bothers me the most is that such campaigns actually work. The slogans are designed for a prescribed emotional effect, vetted by focus groups and psycho-marketing experts, created by PR flaks with an extraordinary talent for putting words together in a manner that gives them the appearance of meaning but leaves them intrinsically hollow. What the hell could it possibly mean for someone to say they’re fighting for “our MIchigan way of life”? As opposed to what, the Wisconsin way of life? This is nothing more than a word salad, totally devoid of meaning. What intellectual could possibly repeat such inanities with a straight face?

And that’s why I like the judiciary, because it is the last bastion of intelligent thought in government. It’s the only place in government where an intellectual could possibly survive with their dignity intact and their soul unsold. It’s the only place in government where an individual can actually care first and foremost about what is right and just rather than about what is politically expedient or pleasing to a populace that is, on the whole, staggeringly ignorant and easily manipulated.

That’s why, when I hear people wax eloquent about the “wisdom of the people” I just laugh and shake my head. That’s why I despise populists of every stripe, because all they really have to offer is empty praise that they know isn’t true. Scratch a populist and you reveal a demagogue. And that’s why I think the founding fathers were quite correct to establish a judiciary that is as immune to the pressures of electoral politics as it is possible to be in a democracy. Our liberties are far safer in their hands than they are at the whim of a simple majority vote.

That’s why the Bill of Rights is such a brilliant idea, because it puts those liberties out of the easy reach of the majority. Yes, they can still amend the constitution, but they made that process extraordinarily difficult on purpose. And in over 200 years, weve had some 11,000 proposed amendments to that document and passed only 27 of them. But time and time again over the last century, it has been the judiciary that has saved our liberties from the constant assault that “the people” have put them under.

They don’t always get it right, of course; there is plenty to criticize among their many rulings. But I firmly believe that it is the only branch of government where doing what is right and just is even possible. In electoral politics, the man who cares about what is right and just rather than what is politically safe and popular soon finds himself out of office. Especially at the national level, where the amounts of money that must be raised to be competitive in a campaign is completely out of control, integrity is ultimately not an option. Only in the judiciary is it even possible to care more about truth than about short term expediency.


  1. #1 Kenneth Fair
    September 6, 2006

    Unless, of course, you live in a state with an elected judiciary.

  2. #2 ArtK
    September 6, 2006

    Great post, Ed! I thoroughly agree with your opinion of the judiciary. That’s why I cringe every time Congress tries to pass a law that is “outside of judicial review” (aside: Is that even possible, short of a constitutional ammendment?)

    My only quibble is with your take on the politician’s phrase “Our Michigan Way of Life.” It isn’t empty or simply word-salad. The phrase has very specific and highly evocative meaning. The fact that it is unique to each person who hears it is the political trick. It’s a grand way of reassuring people who are afraid of change.

  3. #3 Kevin Klein
    September 6, 2006

    But once on the bench, they’re there for life and they don’t have to pander to a barely literate and predominately ignorant population by showering them with shallow flattery, making false promises, and the like.

    Oy! And I thought I was cynical…

  4. #4 Stogoe
    September 6, 2006

    While the average education level has risen drastically over the past century, the capacity for critical thinking and reason has not. I for one think that logic classes were gutted from education systems because of the ballooning number of people they were going to have to fail out of them.

  5. #5 swivel-chair
    September 6, 2006

    I, too, like the judiciary, but I wonder if lifetime appointments really make a noticeable difference. Ed, you live in Michigan, where all the judges are elected (except the federal ones). Then virtually all incumbent judges get re-elected by a populist appeal based in part on their judicial rulings. Most have ads with the same sort of empty slogans as Stabenow, clearly worded only when they’re promising to be super-tough on lawbreakers. They’re officially nonpartisan, but they and the political parties explicitly declare their informal party affiliations. Are their rulings are any worse than lifetime unelected jobholder Scalia’s?

  6. #6 Ed Brayton
    September 6, 2006

    I was speaking of the Federal judiciary only, and yes, I would argue that the caliber of judges, and their written opinions, are generally far better on the Federal level than on the state level (which is not to say that there aren’t excellent state judges and terrible federal ones). What lifetime appointments do is insulate them from the need to pander to people who couldn’t possibly understand the reasoning behind what they do even if you drew it out in cartoon form for them.

  7. #7 themann1086
    September 6, 2006

    Not that I disagree about the importance of an independent judicial branch, because I don’t; 100% agreement there.

    But shouldn’t we as a society try to encourage critical thinking and logic skills across the general population, so that they can’t be manipulated by the educated elitist demagogues? It’s clearly a huge problem, and there are usually 3 responses: there isn’t a problem [the pro-government response]; empty platitudes about education reform that amount to rearranging the deck chairs on the Hindenburg [the demagogic response]; or the people will always be stupid and ignorant, so there’s no point trying [ultra-cynical response]. I know you don’t fall into the first 2 categories; im hoping you don’t fall into the 3rd though.

  8. #8 Ed Brayton
    September 6, 2006

    I certainly think we should do what we can to give people the opportunity to acquire education and critical thinking skills. I do not, however, think that even a bare majority of the population will ever pick it up no matter what the government does.

  9. #9 David Durant
    September 6, 2006

    Devil’s Advocate Ed:
    You’re basically saying that you’d favour a dictatorship style government as long as they ‘do the right thing’ as they wouldn’t have to worry about pleasing “barely literate and predominately ignorant population”. You know that sounds a lot like monarchy which 230 years ago American’s were fighting so hard to remove…

    Surely the idea of democracy is that you have to believe, in the long run, that The People will want to elect their peers would will ‘do the right thing’. If you don’t believe that will ever happen do you think the whole Democracy Experiment is a failure…?

  10. #10 Ed Brayton
    September 6, 2006


    First of all, I do not ever play Devil’s advocate. What you read here, if it is not obviously sarcastic (as in my piece about Walmart the other day), represents my real view on things, always. Secondly, I do not favor a dictatorship at all. What I favor is precisely the sort of limited liberal democracy that our founding fathers built, one that allows for majority vote to control the government indirectly through their elected representatives, but puts limits on what that government can do. In particular, where the will of the majority is to violate the rights of the individual, the latter trumps the former. I certainly do not believe that the majority will ever show anything approaching good sense or judgment, but by limiting the power of government we prevent their worst ideas from being implemented, at least most of the time. And I believe, as Hamilton did, that having an unelected judiciary appointed for life is perhaps the single most crucial check on the majority’s ability to do damage to our liberty. Without that, Hamilton wrote, all of the particular rights and privileges found in the Constitution would be nullified.

  11. #11 swivel-chair
    September 6, 2006

    A lifetime appointment means a judge is free to make an unpopular decision that can’t be understood by the ignorant majority; right. But there’s something else in Ed’s post that I can’t quite put my finger on.

    Maybe it’s a matter of taste? If potential judges know they won’t ever have to pander to the masses in the typically creepy, dirty, electioneering way, then higher-quality, brainier, more honest people will be (and have been) more willing to fill those jobs, including intellectuals, Left & Right, who would otherwise never go near a political office. Lifetime appointments allow a better pool of “applicants”, I guess.

  12. #12 David Durant
    September 6, 2006

    Ed, thanks for responding.

    > First of all, I do not ever play Devil’s advocate.

    Indeed, in fact I was refering to myself there – sorry I wasn’t clear.

    > our founding fathers built

    Alas, I’m British so while I don’t gain the benefit of a written constitution on the one hand I also don’t have to suffer the current strength of the religous right in government on the other.

    > for majority vote to control the government indirectly

    I understand the basics of Republicanism just as I understand the theory of the “Tyranny of Democracy”. However even under the Republic system for it to work at all there must be respect to those that elect the people to represent them.

    > I certainly do not believe that the majority will ever
    > show anything approaching good sense or judgment

    Glad to hear it, I don’t think that came through in the above post.

    > having an unelected judiciary appointed for life is
    > perhaps the single most crucial check on the majority’s
    > ability to do damage to our liberty.

    Indeed, I am also sure that is the case. However it did appear that you wanted to extend that notion into all branches of government – at least as I read it.

    Glad to hear I was mistaken.

  13. #13 Dave Eaton
    September 6, 2006

    Excellent post. It needs to be said out loud, and often, in a society enamored with the idea that without ‘activist judges’ we would all be better off.

    We live in a representative republic. I am unashamed to stand up and count myself as a republican, in this sense.

    On the other hand, tenure in academia is no guarantee of quality, and judges are, after all, appointed by politicans. The double-edge comes when the occasional nutbag gets on the bench. These bums stay even when we vote out the bums that appoint them.

    The feedback loop in politics is poorly tuned, and so politicians oscillate wildly- in the judiciary, it does not exist, and it requires extraordinary people to operate ‘open loop’. I reserve my own opinions here, but I would imagine that the last couple of Supreme Court justices appointed make my point well to some.

    There are dangers, but still I agree that you are right in discerning that it is this removal from the fray of politics that protects our rights.

  14. #14 Coises
    September 6, 2006

    Most people seem to believe that most people aren’t as smart as they are. I’m accordingly suspicious of any argument founded on the assumption that (I’ll put it in single syllables for our “barely literate and predominately ignorant” citizenry) “people are stupid.”

    Consider the political field as a market… a market almost entirely dominated by two suppliers, in which the barriers to entry by start-ups are formidable. What generally happens in such a market? The two major players concentrate on maintaining brand loyalty and vanquishing any possible threat that new suppliers might gain a foothold. What they do not do is compete with each other on the quality and value of their offerings; both have an interest in keeping customers satisfied by — or, more likely, resigned to — the current levels of service, and realize without conferring about it that neither would “win” a battle that could result in raising consumers’ expectations and lowering their tolerance for sub-standard, overpriced products delivered with poor service by companies that have nothing but contempt for the folks who pay their bills.

    We see idiotic pablum in political campaigns because that is the marketing strategy of choice: the same marketing strategy used in almost every advertisement you see on television or in print or hear on the radio. If it bothers you that it sells politicians, it should also bother you that it sells automobiles and frozen dinners and toilet paper. Either the concept of the “rational consumer” is a fiction inapplicable to almost every real market in the developed world, or almost every market in the developed world is defective (in the sense that it is sufficiently deviant from the ideal of a free market to make the “rational consumer” irrelevant to it).

    I believe the latter is the case. People who spend their time reading, writing and commenting in blogs generally like to think, read and write, so we do those things whether there is any clear and immediate purpose to them or not. I’m not inclined to run or lift heavy objects unless there’s some immediate need to do so, and most folks aren’t inclined to research and ponder political conundrums unless they can see some purpose in it. In a market in which the “rational consumer” is irrelevant, there is little incentive to think deeply about the choices one makes.

    Either way, both free market theory and democracy are and will remain irrelevant unless we can fix these markets.

  15. #15 Mark Olson
    September 6, 2006

    While you’re heaping compliments on our founders (like Hamilton above) in there there is also implicit a serious criticism it seems. Those qualities which are so execrable of the elected branches might largely be the fault of the election process set up by those same founders. That is, that the skill set required to run the gauntlet and get elected is almost completely orthogonal to the skill set we would want them to have once they get there. And that problem is in there by design.

  16. #16 Ed Brayton
    September 6, 2006

    I think part of the problem that I describe is inherent in any democracy. The vast majority of any society is going to be badly educated at best, and it is to them that one must appeal in order to be elected. But it’s also been made vastly worse, I think, by mass media and technology. On the one hand, that provides far greater opportunities for education and knowledge than we’ve ever had before. On the other hand, it has collapsed most communication down to a soundbite.

  17. #17 SLC
    September 6, 2006

    Mr. Brayton make a good point that the political ad described herein is devoid of intellectual content. However, bad as it is, it is still better then the negative ads which her opponent will surely run in which Ms. Stabanow will hardly be recognizable. Or for that matter the negative ads about her opponent that Ms. Stabanow will run if polls show the race getting close. One of the things that turns people off of politics is negative advertising, the purpose of which is to energize the base and discourage the opposition from showing up at the polls. When both sides use negative ads, the turnout shrinks and the race becomes one between the true believers.

  18. #18 kehrsam
    September 6, 2006


    You would be susprized at how little impact negative campaigning has on turnout. It’s like the weather; everyone talks about it, but no one does anything. I have seen research claiming a relationship, but it is never able to identify what group is being affected.

    As a veteran of a number of campaigns, I’ll share a poorly-guarded secret: Campaigns run negative ads because they WORK. Based on advertising dollars spent per poll point gained, negative ads are 4-6 times more effective that either “personality” or “issue” ads. Oh, and the gap is widening.

    Presumably this is due to the fact that there is so much advertising (mostly tv) that the only ones the voter remembers are the sensational ones. So despite the enormous amount of attention the media gives negative ads every election, the problem is likely only to get worse.

    The funnelling of money to 527s is also contributing to the problem. Since these groups are forbidden from cooperating with a campaign, all they can do is run ads against whoever they oppose.

  19. #19 Jim Anderson
    September 6, 2006

    Preach it, Ed. Out here in Washington state, judges are pimping their endorsements on the radio, or crabbing about how such-and-so candidate berated women for not wearing skirts in court (no, really). There are a few shout-outs to property rights and “not legislating from the bench,” but otherwise, it’s just the same old crap you hear in every election.

  20. #20 SLC
    September 7, 2006

    Re Kehrsam

    I agree that negative ads work. If they didn’t they would not be used. I do not agree with the claim relative to negative ads and turnout. I suspect that the main influence here is with independent voters. If both sides are lambasting the other side with negative ads, independent voters have a tendency to proclaim a plague on both houses and stay home.

  21. #21 JS
    September 9, 2006

    Negative ads work because there are too few parties. If the 6:1 figure cited above is correct, negative campaign ads will work in any system with up to and including seven parties. Above that, negative ads will turn uneconomical.

    – JS

  22. #22 Mandy Paquin
    October 10, 2006

    Word. I’m not into this type of shit, but the “Canadian Trash” commercial I saw tonight reminded me of the hilarious “Bad Medicine” slasher infomercial from an election past. I found this instead. Doesn’t she want more trash brought in? I thought this was about a way of life?! ack.

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