Neutral? No. Still better? Yes.

Dearest A,

I agree with you, up to a point. Yes, the law is political. The law, as molded through the democratic process, is a reflection of our imperfect, political society, interpreted by people who (shocker!) have a point of view.

But I still think the line between elected and appointed judges is valid and should not be erased.

Here's why: Elected judges are bound not to their own ideology, but to the ideology of the people who elected them. If elected judges do not do what their constituents desire, there's a good chance they'll be out on their tookus the next time an election rolls around.

Appointed judges are only appointed once. Once on the bench, they never have to appease anyone, other than themselves, again. This can have both good (Souter) and bad (Roberts) results.

While the political right has certainly used the lifetime appointment of judges to its own advantage over the last few years, making the federal courts considerably more conservative than the American populace, lifetime appointments are still preferable because they free judges from responding to the fevers of the masses.

When we talk about judicial independence, we're usually referring to independence from the legislative or executive branches. But independence from the people is just as important. Without lifetime appointments, judges would be required to respond to the same demands of the electorate as Congress or the President. Then judges could not independently weigh the merits of a legal argument, but would have to consider whether their decisions would cost them re-election. Judicial decisions would more closely mirror the decisions of Congress or the executive.

While you're absolutely right that the appointed judiciary is not by any means "neutral," I think it provides a much-needed offset to the more democratic processes of the legislature and the executive. We need people who can make decisions based simply on what they believe, rather than relying on what their constituents believe.

It may be the worst form of government, but I prefer it to all the other kinds.

Love,
Sammy