Deliberation and Multiple Decision Makers

• Published in: Judgment Calls
• Main Authors: Farber, Daniel A., Sherry, Suzanna
• Format: Book Chapter
• Language: English
• Published: New York, NY Oxford University Press 19.11.2008
• Subjects: Constitutional and Administrative Law; Law and Society; US Politics; Precedent; majoritarian; constraint; worried; Scholars
• ISBN: 0195371208; 9780195371208
• DOI: 10.1093/oso/9780195371208.003.0009

Precedent is not the only constraint on judicial discretion. Other aspects of the structure of the judiciary also play a role. Scholars worried about the counter majoritarian difficulty often focus primarily on two aspects of the judiciary: the way in which judges are appointed and the provisions for controlling or removing them. In the case of federal judges, the fact that judges are not elected, but instead are nominated by the president and confirmed by the Senate, gives rise to the counter majoritarian difficulty. The discussion thus often centers on the extent to which the appointment process incorporates popular will; the relative responsiveness of the judiciary and the popular branches to public opinion; congressional control over the jurisdiction of the federal courts; and the effectiveness of impeachment as a method of popular control of judges. State court judges, on the other hand, are usually elected and are often subject to popular recall or removal procedures. This both reduces concern and provides a standard against which the federal judiciary can be measured.