I applaud Geoffrey Stone's opinion article in the Chicago Tribune today.  Too often, discussions on the role of our nation's judiciary are either too dense to be widely disseminated or too slanted (usually to the right) to be of much use.  Stone manages to strike something close to the right balance - I'm just not sure anyone will hear what he's shouting.

The ongoing meme on the federal judiciary begins with the "lifetime tenure" of the job.  In actuality, there is no such term in the Constitution.  Federal judges hold their position so long as they exhibit "good behavior".  That means they have an indeterminate tenure based on their actions, not a lifetime appointment (I would concede that it is extra-ordinarily rare for a judge to be removed, but that is a separate matter). 

But arguing against "liberal activist judges" by saying they have a "lifetime tenure" benefits conservative activists in three main ways.  Firstly, it benefits them by making them "the people's champion".  Second, it benefits them by giving them a dependable target between elections.  Finally, it benefits them by obfuscating the points of law upon which our system turns.

By claiming that judges are chosen in an undemocratic fashion, conservatives automatically put themselves in the position of championing "the will of the people."  Judges never face a popular election, so it is obvious that the judges that disagree with conservatives would never win election.  This line of reasoning leads inexorably to the conclusion that liberals have appointed these "activist judges" specifically because they cannot win elections.  Afraid of the will of the people, liberals simply run an end-around and impose their own will on society.

This gives conservatives a reliable target to use between elections to detract from the failure of their policies.  Who cares that our soldiers are dying for some unknown reason, the federal judge in California just ruled that the Pledge of Allegiance cannot be forcibly recited because it contains the words "under God"!  We can't wait until the next election, send your money to fight now! 

Note that this works especially well when conservatives are holding all the cards in DC.  By pursuing and publicizing a few hopeless court cases, they can completely derail the attention of the average American.  Soon enough "cannot be forced to recite" becomes "will not be allowed to even if they want to do so" and the very idea that someone would fight to take away the right to say "under God" in the pledge while our soldiers are fighting and dying becomes the epitome of unpatriotic political opportunism.  This turns the failed policy - getting our soldiers killed needlessly - into a source of pride, while simultaneously building a fake reason to fight (obviously, we have to fight them over there if there are already people over here willing to destroy our rights).

Finally, it obfuscates the very points of law that the courts were designed to protect.  The courts are not designed to be yet another venue for public opinion - if that were designed, then there would be no need for a judge at all and lynching would be the ultimate fulfillment of justice instead of a vile abomination.  The purpose of a judge is, to borrow from the conservative lexicon, to stand astride public opinion yelling, "Stop!"

By engaging opponents in the merits of the system of tenure for good behavior, conservatives avoid any number of issues - chief of which is the definition of "good behavior".  So we have a Supreme Court Justice who goes duck hunting with a Vice President who has a case pending before the Court - action that would almost assuredly trigger disciplinary action in a lower ranking jurist.  But any discussion of Scalia's behavior is brought back to the process of selection for more prudent and liberal judges.  So long as the discussion remains on those grounds - and particularly as long as the myth of "lifetime tenure" abounds - then conservatives are assured a victory.

Notice that when they system of appointment is the problem, then judicial ideology is irrelevant.  This is, I believe, one of the reasons why so many Democratic Senators have capitulated to Republican tactics over the appointment of judges.  If the system is undemocratic, then we must enforce a "nice balance of ideology".  But if the system of appointment is democratic - and it can be argued that it is as democratic as anything the Senate does - then ideology becomes a much more central concern.  What matters isn't a "balance of opinion" or even "the will of the people" - what matters is a willingness to follow sound judicial reasoning and to pursue justice, not ideologically rigorous decisions.

It has been an effective meme for conservatives, and its use should only be expected to expand in the near future as Democrats begin to reassert the checks and balances of the Constitution. It isn't just the Congress and Presidency that has gotten out of balance, but the judiciary that has begun to consistently rule in the favor of the powerful rather than in favor of an expansive understanding of individual rights.  The appointments of John Roberts and Samuel Alito, together with Clarence Thomas and Antonin Scalia, provide ample opportunity to carry the debate over judicial appointments into the public eye - and if liberals are able to redefine the argument into the underlying democratic process of judicial selection, the tenure of good behavior, and the willingness to rule in favor of the weak and oppressed when justice demands it, then they will be successful in changing the face of the federal judiciary.

Or we can wait for fifty or sixty years when the bumper crop of conservative judges begins to age off of the bench.