Your premise that life-tenured judges and only life-tenured judges are unbiased is one that I do not share, and, with AEDPA, has been rejected by Congress. California, far from supporting the case for life tenure, supports the position that a middle ground between life tenure and partisan elections provides the closest to optimum that we are going to get with a problem that has no perfect solution.

California appellate judges stand for a yes/no vote once every 12 years. Only once in 70+ years have any been removed, and that was exactly when they should have been — a runaway, agenda-driven court that was a disgrace to the state. The California Supreme Court after the election was a vastly improved court, and to this day it remains superior to the life-tenured, often-reversed (but not often enough) Ninth Circuit.

Roger, I think you are splitting hairs claiming that “unexamined” means something different from “unreviewed,”, but I’ll leave it at that.

At least I got the i and e in the right order, unlike Gretchen.

I used “unexamined” not “unreviewed” in the sense that the Justices never even got to see the petition. Unless you have a better adjective, it will just have to remain the unexamined death.

I noticed on your blog that you made the same point, that there had been plenty of judicial reviews, but that you did not defend the decision on its own logic. And my “Even the Kent” sentence was written before I saw your blog.

Taylor –

I say “obvious joy” because (1) the example adds nothing to the logic or force of the opinion, as noted by the dissent; (2) as an example, he could have merely noted the rule, or the Clerk’s policy, without mentioning any specific case; and (3) having cited the case, he need not have added the “without our ever” line. Maybe “relish” would have been better than “joy”.

So here’s a modest proposal that will both take care of Tom’s concern about the shrinking docket and Kent’s concern about delays in executions — how about if the Court starting hearing a lot more petitions from direct appeals in death penalty cases. It would cut out the federal habeas on all those issues.

As one who listens to all the Ninth Circuit aguments, it’s clear that judges learn a lot from seeing lots of similar cases, their questioning gets sharper and their willingness to accept debatable assertions declines. What occurs to me is that the Supreme Court is too selective, they need to keep their hands in the judicial stream. They need to apply their rulings to the cases before them, not just remand for procedings consistent. I don’t think circuit judges often worry about becoming unelected policymakers, they’re too busy keeping up with their dockets.

roger friedman

Second, you spelled my name wrong.

On the point of the main post, Tom is a little too dismissive of the Texas cases in claiming a “clean sweep” for “conservatives.” The Texas cases constitute further implementation of a line of cases that was fundamentally wrong from the start. It is disappointing to see the author of Johnson v. Texas abandon his previous efforts to limit this misguided line.