Saturday, August 06, 2005

"Out of touch" judges

Jim Lindgren approvingly notes that in a 1983 memo, John Roberts questioned life tenure for judges. Roberts was worried that federal judges were losing touch with reality as a result of "being insulated from the normal currents of life for 25 or 30 years". Dahlia Lithwick, meanwhile, attacks this sort of argument as meritless judge-bashing.

I don't know quite where I stand on the substantive controversy here, but I do want to take issue with one argument that Lithwick makes. She says that it is particularly odd to hear the "out of touch" argument from originalists, because if you're an originalist, "the only society you need be intimately in touch with is that of the framers of the Constitution". Suppose that it's true that originalists would not want their ideal judges to take any cues from their current surroundings. Even then, Lithwick's argument doesn't really go through, because there is a difference between the way should be and the way things are. An originalist might well realize that most judges are not in fact originalists and do take cues from the popular will in making thir decisions; if this is true, even the originalist might want them to take cues from popular will as it actually is, rather then the popular will that exists in their minds after 30 years of ivory tower isolation.

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