First, electing judges runs counter to the American idea of an independent judiciary; elections requiring fundraising, and it’s extremely difficult for a judge to appear impartial if — as a candidate — he must appeal to special interests and outside groups for cash and support. Moreover, appearance aside, fundraising influences judicial decisions; donors can pressure judges to support certain rulings in the same way that they pressure legislators to support certain legislation. …

But even if you could insulate elected judges from campaign pressures, you would still have to deal with the fact that judicial elections just aren’t that important to most voters. To most voters, judicial elections — even high profile elections for state Supreme Court seats — are a blip on the display, at least compared to congressional and presidential elections. The problem with electing judges is similar to the problem with electing treasurers or the problem with electing dogcatchers; with so many elections, voters don’t have the time or knowledge to evaluate the candidates. As such, there are far fewer eyes watching the conduct of judicial candidates and few barriers to bad behavior; as the study details, campaign donors can donate huge sums of money without attracting much attention from voters or officials.

In the end, the study’s authors look approvingly at growing support for public financing in judicial races, but a better solution would be to just remove state judiciaries from direct involvement in elections. The idea of elected judges is nice and Jacksonian, but it’s incompatible with our ideas about judicial fairness and independence. Either we stop electing judges, or we just accept the fact that elected judges will look out for their constituents as much as they will apply the law.

This is not a story that begins with the administration of George W. Bush. It begins, instead, with the administration of Ronald Reagan. Convinced that excessive regulation was stifling American innovation and imposing unnecessary costs on the public, Reagan’s team changed the way government makes rules.

Prior to the 1980s, agencies like the FDA had authority to finalize regulations on their own. Reagan changed that, forcing agencies to submit all regulations to the Office of Management and Budget, which cast a more skeptical eye on anything that would require the government or business to spend more money. The regulatory process slowed down and, in many cases, the people in charge of it became more skittish.

People don’t tend to line up in two camps of OMB review approval vs disapproval.  But in any event, the post is a nice read for administrative/policy fans.

The first sentence of the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

I’m working on a paper that quite heavily relies on the 14th Amendment’s opening line, and am thus interested in the immigration policy-driven constitutional discussion going on. Another big chunk of the paper is on Congress’ prerogative to identify and enforce constitutional rights, so my instinct is ordinarily to praise Congressional hearings on constitutional provisions, as Sen. McConnell is apparently pushing.

But, in this case let’s call a ridiculous spade a ridiculous spade. If the GOP Senators plan to stall about every vote, citing the deficit, it would seems we could save some resources by skipping hearings into unambiguous text and offering, instead, whatever citizenship-altering amendment these people have in mind.

- Professor Kim Krawiec writes about the Dodd-Frank bill passing the policy-making buck to administrative agencies.

- Reed Abelson at the NY Times writes about the health reform provision that requires insurance companies to spend 80 cents on the dollar for the insured’s welfare, and to refund the remainder.  Insurance companies are lobbying regulators to water down the actual rule that will implement that policy.

Anyway, F28 picks up on F27’s themes by addressing worries about Shay’s Rebellion and its ilk.  The rule of law in America has apparently come a long way between 1787 and 2010, as Publius is very emphatic that armed insurrections are an inevitable part of life—just like “tumours and eruptions from the natural body.”  (Ew.)  Today we are obviously far more worried about lone actors or small terrorist sleeper cells than we are about armed rebellion by a sizeable minority.  In the 1780s, though, everyone was more freaked out about a Civil War-type scenario than they were about some random person losing it and shooting up the local post office.  As events turned out, of course, these civil war worries were well-founded.

The most interesting and relevant part of F28 to us modern readers is where Publius is discussing the relationship between the federal and state governments.  In addition to the brilliant system of horizontal checks and balances among the branches of the federal government, the balance of power runs vertically in our country, too.  Hamilton’s theory is that anytime the federal government “invades the public liberty,” the state governments will be ready and waiting to jump in and stand up for the people’s rights.  That’s kinda-sorta applicable today, I guess; but historically more often it’s the federal government who has had to stand up to the states to induce them to respect the public liberty (ala the civil rights movement in the 1960s).

That aside, I wonder how Publius thought his theory would play out?  By what means, exactly, could the state governments defend their citizens against perceived encroachments of the federal government (both then and today)?  Any way besides armed rebellion?

* Publius churned out the Fed Papers a tad quicker than we are managing to blog our way through them.  [Sorry to take so long on this one, APO]

(1) By chance, this accident occurred at a BP rig. However, the fact that a drill unleashed a methane patch is something that happens inevitably when drilling for oil. Better protection may , but not necessarily, prevented the explosion.

(2) This was BP’s fault. The company should could have avoided the methane, and a rig with proper equipment would not have exploded.

Of course, it matters a great deal to determine the truth of whether one of these, or something else, is the cause. However, perception matters a great deal when one remembers that so many of our environmental laws were passed reactively rather than prospectively.

Scenario 2 places the blame on BP and, I’d predict, result in legislation tightening the regulatory watch over oil wells. While seemingly an improvement, that policy reaction would give an aegis of safety and do nothing to nip the real problem in the bid.

Scenario 1, if perceived, would go much more against the offshore drilling that the Nation had, previously, been much more inclined to support. The policy reaction would tend toward long term progress in our enegy sources (ie, away from oil).

It will be interesting to watch which interest groups push the various blame-scenarios.

“We call it ‘Smart X,’ because right now you’ve got the smart city stuff, but eventually we’ll have smart medical practices, smart law, and so on, and we need everyone working together on these challenges,” McGourty says.