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May 22, 2009

Justice Breyer Suggests Cabinet Position for Judges...Because They Need Political Clout; or
Justice Breyer Is A Fucking Lunatic*

Just exactly what the headline says:

The talk of a Cabinet post was prompted by an audience member who asked the panel about judicial pay raises -- or the recent lack thereof. Breyer pointed out that even though federal law provides a cost-of-living increase to sitting judges, Congress has consistently voted to cancel the pay hike. The problem isn't the law, he said, but the fact that judges -- even on the high court -- lack political clout.

"When I was on the Judiciary Committee in the staff, I received a phone call one day from Warren Burger, the chief justice of the United States," Breyer recalled. "And he spoke to me and asked me about a bill that was relevant. I thought after, Why is he calling me? And the reason is that no one else would talk to him."

Breyer argued that despite concerns about separation of powers, there should be "a person with political responsibility" in the Cabinet to express the judiciary's viewpoint directly to the president. He compared the position to that of lord chancellor in England.

When the issue is limited to things like judicial pay increases, (lower) court expansion, and other employment-related issues this seems like no big deal. After all, judges can't unionize and it wouldn't be a bad idea to give them a voice. (Although a Cabinet position for that seems like a major overreach.)

But his suggestion that the purpose of the position would be to make ex parte communications with a frequent litigant in the Supreme Court--"ask about a bill that was relevant", "express the judiciary's viewpoint directly"--he's completely lost his mind. It is the job of the litigants to raise and explore relevant issues. And the judiciary should bee keeping its "viewpoint" to itself. As conservatives have to keep reminding Leftists in black robes, it is not the job of the courts to set policy. The Constitution commits that to Congress and the President.

*Alternative headline suggested by DrewM. He really knows how to express the blog's viewpoint directly.

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