A SIMPLE FIX EXISTS!
The U.S. Constitution: …”The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”…
The appointment of a federal judge has been interpreted as a lifetime appointment, no term limits, with impeachment as the only resolution to a judge who has gone off the rails via high crimes and misdemeanors. What happens to these judges when he or she writes law, without regard to the wording of a statute and even the wording of the Constitution – nothing. The 9th circuit just did this very thing. They just came down with a unanimous majority decision that has absolutely no basis in law or under the Constitution.
The left has resorted to activist judges to overrule the Congress and the President when they do not have control of the Congress or the White House. This has become a very successful tactic. But is it Constitutional?
Term limits are often cited as a Constitution change that would solve this problem – it most certainly will not. The problem is that we simply do not know the boundaries of “Bad Behaviour”. When bad behavior is left to the interpretation of the members of Congress of both liberal, and now progressive, and conservative persuasion, there is no action, other than high crimes and misdemeanors.
Defining this bad behavior in statute would then allow a fair and objective judgement of the federal judiciary.
If bad behavior were defined as a ruling vote or opinion not grounded in U.S. Code and/or the Constitution, then impeachment would be easier. The vote or ruling could then be challenged and defended based on specifics and not a nebulous bad behavior. The justice could be challenged by the Executive Branch or the Congress to show the hard and clear connection to a statute or the Constitution in the opinion. If not, then “BAD BEHAVIOUR“.
With impeachment easier and more well-defined, the jurist would have a limit on interpretation and personal belief beyond the written law. Activist judges could be reeled in, and the judiciary would more resemble what was intended – a fair and exacting arbiter of the Constitution and statute.
In 1803 Chief Justice John Marshall, under Marbury V. Madison, established/confirmed the legal principle known as Judicial Review. Under Judicial Review, the supreme Court could declare a piece of Congressional legislation (or Executive actions) as unconstitutional. Over time Judicial Review has become a tool of the inferior courts – district and appellate (circuit) courts. This Judicial Review has clearly enabled judges to be activist judges.
This proposed statute definition of just how far Judicial Review can be taken is in order. With it, we can bring back the necessary Checks and Balances found in and intended for the Constitution.