Judicial Independence and the Ambiguity of Article III Protections
George, Tracey E., 1967-
Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other bodies of the federal government, but just as importantly, from within the judiciary itself The author focuses on these internal threats to judicial independence. First, judges are the children of an inherently political process: Judges are nominated by presidents, who by necessity must be political in their selection of judges, and the resulting confirmation process in the Senate is often a delicate, and sometimes brutal, political affair. The author proposes that judicial independence may be best served by divided government checking and balancing itself in the appointment process. Second, judges are often political creatures. They, as with most humans, have their own ideologies and ambitions, and the constitutional structure designed to maximize judicial independence may have the opposite effect of amplifying their political behavior. The author concludes that despite its flaws, Article III's judicial system is still a model system of dispute resolution.