Ted Olson Hyperventilates

Ted Olson is back out of government service – he was Bush’s first Solicitor General – and back into private practice. That practice includes Supreme Court litigation, most famously as the president-to-be’s lawyer in Bush v. Gore.

Olson's a part of the system, in other words. It shows in his opinion piece in this morning’s Wall Street Journal, "Lay Off Our Judiciary." While praising judges and damning the “overheated rhetoric” of their critics, he also has this to say:

This is not to say that some judges don't render bad decisions. Arrogant and misguided jurists exist, just as such qualities may be found in the rest of the population, and our citizens and elected representatives are fully justified in speaking out in forceful disagreement with judges who substitute their personal values or private social instincts for sound jurisprudential principles. But the remedies for these aberrations consist of reasoned, even sharp, criticism, appeals to higher courts, and selection of candidates for judicial positions that respect limits on the roles of judges.

But, absent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with -- and may dislike even more -- adjudications made by presidents or this year's majority in Congress.

Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems. If a judge's decisions are corrupt or tainted, there are lawful recourses (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with -- and intimidation of -- the judicial process. And there is no logical stopping point once this power is exercised.

To sum up: Arrogant judges and bad decisions exist; “forceful disagreement” is OK; and the remedies are criticism, appeals to higher courts, and putting judges on the bench who respect the limits of their role. All other proposed remedies are over the top.

We have, in other words, no remedy, especially when the arrogant judge issuing the bad decision sits on the Supreme Court, at which he arrived with no clue as to whether he would "respect the limits of his role."

You know, in all the debate over the courts in the last few years, there has been a real paucity of people like Olson willing to say, “Justice Kennedy, you’re wrong.” Maybe he says that to him in private, they probably hit all the same parties. I suppose they can’t say it in print without jeopardizing their practices.

One other point: Olson says “Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems.”

Forty-seven states in this country require oversight of the judiciary either by voters, legislators or judicial commission. Each election or term renewal is in some way an investigation. Is Olson saying these states’ judiciaries are without integrity?

OK, two other things: You reckon Olson just woke up this week with a burning desire to defend the judiciary? Or did someone ask him to write it, and who? Not implying anything, just curious. Especially after the New York Times last week asked Bob Livingston to attack Tom DeLay...
*****Commissar, you return! You must get with program. Cool heels in Lublyanka and reconsider your bourgeois position, or show trial before PARTY judge comes next! ... I think I like the comments at Balloon Juice better than the post ... Kevin Ray calls Olson's piece sensible and reasoned. ... In James Joyner's view, the Empire Strikes Back. ... Professor Bainbridge jumps out of Olson's inside-the-box thinking and into the new inside-the-box thinking: term limits. Will someone please explain to me how term limits will affect judicial activism in the least? As I've argued elsewhere here, term limits will concentrate a judge's lifetime agenda into the length of the term; it decidedly would not alter that agenda.