Judge Pickering proposes an anti-activist constitutional amendment.

Retired Fifth Circuit Judge Charles W. Pickering, Sr., has this op-ed in today's Washington Times in which he laments that the televised character assassination that the federal judicial confirmation process has become has resulted in over half of those approached to serve in the federal judiciary saying, "No thanks."

Judge Pickering attributes this to "[t]he transfer of all the hot button social issues: Partial-birth abortion, abortion for teenagers without parental consent or even parental notification, same-sex "marriage," references to God in the Pledge of Allegiance, at public buildings, ceremonies and institutions, display of the Ten Commandments in public places, rewriting history to delete all references to a religious motivation in the settling and building of America, and hard-core and child pornography -- are being settled in the courts of our land rather than in legislative bodies." (sic)

I sympathize with Judge Pickering and entirely agree that the transformation of the federal courts into an unelected group of philosopher-kings (and queens), who make social policy under the guise of interpreting a "living" constitution, has resulted in every judicial confirmation becoming a political battle over social issues. The certain knowledge that you will be publicly vilified and personally attacked from the left, right or both, while your friends and family suffer right along with you, is certainly the reason for both the reduced number of highly competent lawyers interested in the federal bench and for the footdragging and outright roadblocks in the confirmation process for those candidates who are willing to serve. Having said all that, his proposed constitutional amendment has some flaws.

Judge Pickering suggests that an amendment be ratified that requires the courts to "interpret the Constitution and amendments in accordance with the common understanding of the relevant provision at the time it was adopted. This amendment does not affect the weight to be given prior decisions under the Doctrine of stare decisis."

Although Judge Pickering's intent seems otherwise, it sounds less precise to me than the primary canon of statutory construction which requires that words in a statute (or constitution) be given their "plain meaning." With respect to the last sentence of his proposed amendment, it also seems to me that if an "originalist" interpretation is constitutionally required, wouldn't that, by definition, trump any weight that stare decicis would have that conflicted with an "originalist" meaning?

If it is going to take a constitutional amendment to return the federal judiciary to sticking to "cases and controversies," perhaps, while we are at it, we could also revisit lifetime appointment of federal judges.

Hat tip to Howard Bashman at How Appealing.