President Lincoln and Chief Justice Taney in 1861

I am not entirely sure that Taney and Lincoln had strongly different views about Ex parte Merryman, habeas, and suspension.

If Lincoln had believed he had unilateral authority to suspend habeas (even limited to when Congress was not in session), Lincoln certainly could have said so, and done so in clear language. And, concomitantly, he could have spared Congress and his party’s members the controversial effort of granting him statutory authority to suspend habeas—which is what Congress granted in 1863.

Likewise, if Taney believed that Lincoln lacked authority to temporarily suspend habeas while Congress was not in session, Taney could have granted John Merryman what Merryman asked for: an order, directed to Merryman’s jailer, ordering Merryman’s release. Taney could have—and should have—risked disobedience by the Executive Branch. I don’t take seriously the reports that Taney feared his being arrested. If he acted in this manner, ie, if he refused to grant Merryman relief, because he feared arrest, Taney should have put that in his opinion. What Taney primarily wanted (as I see it) was for Lincoln to take public and political responsibility for his (Lincoln’s) decision to suspend habeas. Lincoln’s July 4th address did just that—so, it is not clear to me that they were really that far apart.

Seth Barrett Tillman, ‘President Lincoln and Chief Justice Taney in 1861,’ New Reform Club (Feb. 28, 2023, 6:43 AM), <https://reformclub.blogspot.com/2023/02/president-lincoln-and-chief-justice.html>; 

Some Thoughts on Judicial Reform

 

 

I have not read the current Israeli government’s judicial reform program in detail. But the current process for selecting Israeli judges—basically self-selection by extant judges is truly awful. (Other nations that use judicial self-selection include India and Pakistan.) So I am inclined to think that nearly anything that allows the parliament, government/cabinet, or prime minister to control or influence that process is a plus.

 

The problem with the government’s selection of judges (as I have observed in the U.S. and Ireland) is that the candidates are chosen for two reasons. Everyone knows about the first reason: party loyalty / ideological commitment. The second reason is: judges are picked for being the better/best practitioners who know how to successfully negotiate the extant legal system. The problem with the latter is that what is often desperately needed is not judges who can negotiate the legal system, but judges with the energy and wisdom to lead major programs of institutional revision in order to reform the legal system. Sometimes what is needed is root and branch reform. Otherwise, you may end up with idiots savants managing an asylum, but calling it a court system. Or, to put it another way, you have experts expertly managing a slow-moving, opaque, expensive (vis-a-vis litigants and taxpayers), and otherwise failed judicial system.

 

Seth Barrett, ‘Some Thoughts on Judicial Reform,’ New Reform Club (Feb. 6, 2023, 9:41 AM), <https://reformclub.blogspot.com/2023/02/some-thoughts-on-judicial-reform.html>;