Thinking about checks and balances

Earlier today, I linked to, and critiqued, a piece complaining about the alleged assault by conservatives on the independence of the federal judiciary. Later, I remembered that Charles Kesler of the Claremont Institute had written an editorial on this subject in the Winter 2004 issue of the Claremont Review of Books. Here is some of what Kesler had to say in response to the Chief Justice Rehnquist’s complaint on the same subject:

One has to ask: Are there no decisions by a federal judge however contemptuous of the Constitution or the other branches, that might warrant impeachment? Rehnquist apparently does not think so. . .By contrast, when Alexander Hamilton in The Federalist asked what are the safeguards against judicial “encroachments on the legislative authority,” he cited “the important constitutional check which the power of instituting impeachments would give to [Congress] upon the members of the judicial department.”
Of course, no one is suggesting that Congress subsist on a regular diet of impeachments. Rehnquist is correct that such a course would imperil judicial independence. But the courts are not supposed to be independent of the Constitution and Congress should not be cowed into thinking that there is little or nothing it can do about that. For example, there is its power to regulate and make exceptions to the Supreme Court’s appellate jurisdiction. It’s right there in Article III, section 2. And [Rehnquist] says nothing at all about constitutional amendments as a way to save the Constitution from the judges, despite the fact that several amendments, beginning with the 11th, have been adopted for that very reason.

We were all taught that our system is one of checks and balances. Thinking about the checks and balances that apply to the judicial branch, and utilizing them judiciously in some combination where necessary, does constitutes an affirmation of, not an affront to, our form of government.


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