As you may have seen in the news recently, magistrate Lu Ann Ballew at Cocke County Chancery Court decided that a child who had been given the first name of Messiah must have its name changed, based on the magistrate’s argument that only Jesus Christ has earned the title Messiah. Read about it here.
Clearly this magistrate is off her constitutional rocker, and I don’t really think we need to debate that here—if taken to a higher court, it will assuredly be struck down. But this issue raises the serious question of what we can do to remove judges who don’t seem to take their oath of office seriously.
The courts have no right to force a parent to change their child’s name. I’ve heard of white supremacists naming their children Adolf, and while those parents disgust me more than a Waffle House steak, it’s their right too. With any luck, such a child will grow up, have more intelligent influences in their life, tell their parents to get bent, and legally change their name as they become an adult. If not, one of the great beauties of America is that you have a Constitutional right to be a hateful stone-cold moron. I’ll let natural selection address that issue, we don’t need courts to do it.
However, this problem has me pondering our current justice system, and specifically the mechanisms to remove derelict judges from the bench.
First things first, let’s outline who we’re talking about and the processes involved.
There are magistrates such as the woman above, who largely administrate civil matters. There are judges who oversee criminal trials, and there are justices who usually sit on either a state or federal supreme court. The terms magistrate, judge, and justice are often interchanged, and there’s no official differences, but the ones I outlined are the more commonly accepted usages, so we’ll use them here for now.
Magistrates and judges are usually a single person overseeing a trial or hearing, whereas justices are almost always part of a committee who decide as one by majority vote, such as the 9 justices who site on our U.S. Supreme court. While justices are kept in check by virtue of their majority-rules platform, magistrates and judges can sometimes make life-changing unconstitutional decisions that affect people who may not have the knowledge or means to advance the decision to a higher court.
Different states, counties, and cities may have different procedures and oaths, and some are indeed elected where others are appointed, but the process is largely the same throughout the country for removing them. As it stands now, a judge is usually only removed if they’re convicted of a felony. But what about simply violating their oath to uphold the Constitution? Much like any other career, a felony should not be the sole reason a judge has their gavel forcibly retired. Job performance should be just as relevant.
Judges cannot and should not be removed by popular vote. I know this seems counter-intuitive to some, but the reason is very important. Judges are never supposed to make decisions with consideration to popular opinion. They are there to interpret the federal and/or state constitutions and applicable laws as written, regardless of what the populace desires.
The Constitution exists to protect the minority from the majority after all, so if a judge always sided with popular opinion, the Constitution would become nothing more than a historical document.
Judges should also not be removed by legislators and executives. For non-elected judges, executives often nominate them, and legislators then confirm them, but once a judge is appointed, that judge should not feel a duty to repay the executives or legislators in any way by siding with them or fear being unseated by either of the two other branches of government. Otherwise, our system of checks and balances would be all but destroyed.
So what do I propose then?
I think the answer is simple and two-fold.
1 – All judges should be appointed to one full term, and that term should be no more than 8 years, all the way up to United States Supreme Court. No reelections, no 2nd appointments—8 years—done. If a term limit is proper for the president, it’s proper for judges as well. They ensure no one person becomes too powerful. Why they’re not applied all members of political office, whether it be the president, justices, or legislators, makes no sense to me.
The one term proposal is simply to ensure they never make decisions in an effort to get reelected.
2 – All judges except the U.S. Supreme Court should have the number of times their decisions are overturned recorded and held against them. An overturned decision is an unconstitutional one, something they effectively swore to never do. If they rack up a certain number of overturned decisions, then they shall be removed from office for having violated their oath.
As for SCOTUS justices, removing them gets more tricky. there is no court above the U.S. Supreme Court to overrule them. But also, Supreme court justices are entirely done by committee, as opposed to a single judge making a ruling. The only real option there should be a 2/3 majority vote and a confirmation by the president, but limiting it purely to constitutional grounds. Meaning that 2/3 of the majority and the president agreed that the SCOTUS justice had willingly violated the Constitution in their decision.
Why is this important? We have three branches of government. Executives enforce law, legislators write law, and judges interpret law. They are intended to balance each other out, but when a justice goes outside written law in their decision, they are legislating from the bench. If they wanted to be a legislator, then they should have chosen that path instead of the judicial route.
My proposal is intended to hold these people accountable for their job performance. I can’t think of too many other careers where a person needs to commit a felony to get fired, why should our government officials be any different? If a free-market employment principles yield better performance in the private sector, it can improve government too.