Ramesh, Today’s circumstances make such a campaign distinctly unlikely to succeed, but I am not willing to write off entirely its wisdom. The public has been sold a bill of goods by proponents of judicial “legislation” on the need for an “independent” judiciary, which, in constitutional terms, only means life tenure (assuming “good Behaviour”) and the protection of their compensation, but it certainly does not mean that the judiciary is beyond reproach, either by the public or the elected branches of government (and I don’t take you to be suggesting otherwise). I am doubtful that a targeted impeachment approach would work either, but if we are unwilling to rely on constitutional checks simply because the problem not foreseen by Hamilton has become so pervasive that it would be difficult to manage, then we have lost the check entirely. You and I probably don’t disagree much on whether we would actually ever invoke such a drastic constitutional remedy, but by denying its practicality, I think the editors make a mistake. At some point, and I don’t suggest we are there yet, there may come a time when the people who elect the representatives who appoint the judges may just be fed up with the Imperial Judiciary. And one of the few constitutional options remaining at the back end is impeachment.
I find the NRO Editorial especially problematic when coupled with the earlier editorial denouncing (if ever so lightly) filibuster reform in the Senate. We both agree that, as you wrote yesterday, “it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law.” But if we are not willing to take action against it, the problem will only get worse. Of course, I am willing to hear you out on more practical options. The problem cannot, however, go unresponded to.
On Hamilton’s point in Federalist 81, your suggestion has some merit. The executive and legislative branch bear a great deal of responsibility for getting us where we are now, but they also have the tools to deal with the problem. I would not wish to deny them those tools.