May 15, 2017 | By Marc O. DeGirolami
Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump's presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to "resist" Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.
Welcome to the rise of fake law. Just as fake news spreads ideologically motivated misinformation with a newsy veneer, fake law brings us judicial posturing, virtue signaling, and opinionating masquerading as jurisprudence.
And just as fake news augurs the end of authoritative reporting, fake law portends the diminution of law's legitimacy and the warping of judges' self-understanding of their constitutional role............A large part of the blame for this abomination falls on the Supreme Court. It was only a matter of time before the hollowness of its favored establishment clause test—which focuses on impure motivations, perceived slights, and the hurt feelings of political exclusion—would be exposed in the patently unreasonable use of irrelevant and illimitable "context." The reasonable observer, it seems, is not the judge who faithfully applies the law but the politically motivated judge who swells the scope of the establishment clause and wears his contempt for the president like a medal........To Read More.....
There are three levels of the federal judiciary- the District level, the Appeals level and the Supreme Court. Each level should have a ten year limit with a review after five years requiring a majority approval by the Senate. At each level each nominee would have to go through the same process, even if nominated to a higher court before they finish their term in a lower court. If their tem runs out and they’re not nominated to a higher court they may be nominated at some point in the future. No jurist can return to a lower court if their term runs its course at a higher level, and no jurist can ever be appointed to a court if their nomination to any court has ever been rejected by the Senate. No jurist may serve after the age of seventy.