Kerr on Wilksinson

by Jonathan H. Adler

Orin Kerr on Judge Wilkinson’s recent op-ed:

Judge Wilkinson is an excellent judge, and I happen to agree with the opinions he expresses in the op-ed. But c’mon, is it too much to expect for the elected branches to do their jobs without judges weighing in? Nominating judges is the President’s job, and confirming them is the Senate’s. Sitting judges — and especially sitting judges generally affiliated with the opposite party as both the President and the majority of the Senate — have and should have no role in the process. As I said before when criticizing Justice Ginsburg, judges who want judicial independence must see it as a two-way street: If they want the elected branches to stay out of judicial business, they should stay out of the business of the elected branches.

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