Judges and the judiciary get away with a lot of usurpation of power in Western democracies they should not be getting away with. One reason for this is that both democratic conservatives and liberals want judicial power and thus do not want to rock the boat or minimize the propaganda marketing the rule of law as the savior of Western Civilization. The goal is to get judicial power not to control it because judicial power is pretty much the holy grail of being a politician because it gives absolute power without having to go through dirty political processes such as an election or a dirty military process such as an explicit military coup. Creating law implicitly by interpretation of law as law is much easier and intellectually cleaner than the intellectual dissonance required of explicitly writing law through legislative disputes and compromise. It is must easier to create a world in one’s image as a judge with a monopoly on violence and complete immunity from one’s actions in a lifetime and guaranteed well-paid job than as a politician in a legislature requiring constant re-election. An implicit or legal coup by a judge wearing a judicial robe is much cleaner in form than having a military coup though the result is the same in terms of political substance. I have contemplated the philosophical nature of this problem in other essays such as in EXISTENTIAL PHILOSOPHY OF LAW but here I want to get personal and individual by contemplating the individual nature or personality of the individuals who want to be and who become judges.
The well-marketed image of judges is that they are highly qualified attorneys or academic intellectuals who want to become judges in order to fairly and honestly adjudicate social disputes in the interest of justice. Such marketing is even upon cursory historical or even common sense contemplation a farce but the Powers of the law get away with it for reasons discussed elsewhere. Begin your contemplation of the work judges do by thinking and imagining what judges really do on a daily basis: they pass judgment on the lives of others and condemn those lives to ruin either financially or physically. Instead of the live and let live attitude by which most sincere hard-working persons with integrity in life want to live; instead of the honest competitiveness of ambition sincere hard-working persons with integrity in life admit to having; wanna-be judges want to spend their days passing judgment on the lives of others — they actually want to spend their lives passing judgment and condemning the lives of others. They are essentially a human resources department for society except even the likes of a human resources department is subject to its own willingness to condemn, punish, and to use individuals as resources for power; judges and the judiciary are not, they are sheltered and protected from their use of others for power — a bunch of cowards and hypocrites.
They do their jobs not by honestly admitting they like to play god but by pretending they are sincere hard-working individuals with integrity who are simply enforcing an abstract concept called the law. Whereas, what they are actually doing is making up law as necessary to enforce their personal likes, dislikes, bias, and prejudice. As the judiciary is designed now, it is a dishonest and hypocritical job to the core.
How do they get their job? By being a great or even a good attorney is most definitely not one of the prerequisites. In our adversarial criminal and civil trial system, being a great or even just a good attorney requires that you actually take sides in contested battles and actually want and believe in winning for your side, thus you make enemies. Becoming a judge requires great political skill: the ability to go through life either not believing in anything so as not to make any enemies or to hide whatever you believe so as not to make any enemies. In the former case, the goal of becoming a judge is simply a search for power-as-an-end-in-itself; these types of judges work well in any society, be it the tyranny of a Stalinist judiciary or the ruling class ideology of a democratic judiciary. In the latter case, the goal is to wait until you are a judge and then finally enforce your beliefs upon others through the monopoly on violence the law grants you; these are the judges that create both Stalinist regimes and ruling class ideology and are far more dangerous than the former. The former will kill you for who you are and can be reasoned with; the latter will kill you for who you are not and cannot be reasoned with.
Such are the personalities who volunteer to be judges, either appointed or elected. They are dangers to freedom and dangers to anyone who is not in the Inner Party — they are the Outer Party of any society’s Inner Party. No one who volunteers or who actually wants to be a judge should be allowed anywhere near such power. Attorneys and lawyers and the judges they make pretend to be a profession, they should act like one and subject themselves to a draft for public service through a modified version of the method used by ancient Athens to pick its judges: all attorneys who meet set criteria should be eligible for a draft into a judgeship for a set and definite term. There should be no more volunteers nor especially any lifetime appointments with complete immunity. As always, there are many details to be worked out. However, we cannot get to the details until first we stop viewing and, for many, stop worshiping judges as some kind of fair and honest arbitrators of facts and law that are not corrupted by the absolute power they have. In the present judiciary, this is nonsense worse than believing a military coup can be a fair and honest arbitrator of facts and law. It is worse nonsense because the latter is obviously propaganda whereas the former hides itself as morality and ethics thus gets away with its daily and multiple coups for power.