Judge, lest ye be not judged

It’s strange that the US is moving further towards political control of the judiciary, just as the UK is moving away from it, with the establishment of a Judicial Appointments Commission.

The US already, of course, has a fair degree of political control, but at least the filibuster kept the process from being entirely partisan.

The role of the judiciary, and indeed any role designed to limit the power of the demos, is a tricky area for a democrat. If the demos should have control of what you can do (through the legislative system) as well as guilt or innocence in individual cases (through juries), why not go the whole hog and give it power to appoint judges?

The answer in the case of the US is fairly straightforward – giving the party with the Senate majority the power to appoint judges is not the same as giving the demos that power, particularly when gerrymandering of electoral division boundaries is driving the competition for seats into primary contests, where politicians have to pander to more extreme activists.

But more generally, there is always a role for proper independence for the judiciary in a democracy. The judiciary should be representative, trustworthy, and removable in the event of crimes or misdemeanours. But – for all the rhetoric about old fools making law from the bench – sometimes democracy needs to be protected by a drop of oligarchy.