Another unintended consequence of the war on drugs?

Here’s an argument for ending, or at least curtailing, the war on drugs that you don’t hear every day. From the Associated Press:

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

“Federal judges ain’t what they used to be,” he said during a rare appearance before the Senate Judiciary Committee..

The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. “It’s not as elite as it used to be,” he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

The AP story says there are 874 federal judgeships. That means there are three times as many federal judges as there were in 1950 — and twice as many federal judges as there are members of the U.S. House of Representatives. And that doesn’t include judges in the bankruptcy courts.

I’ll leave it to Scalia to pass judgment on the quality of federal judges (although it does stand to reason that tripling the number of judges, during a time when the total population has only doubled, would lead to a lower standard for reaching the bench). But, assuming he’s correct, weakening the federal judiciary — and one must also assume these weaker judges hear more than just drug cases — is a novel rationale for changing our approach to drug criminalization.

Changing the way we deal with nonviolent drug offenses at the state level, you may recall, could be one of the proposals we get from a state commission examining ways to reduce Georgia’s spending on corrections.

Alternative courts and sentencing aren’t the same thing as decriminalization, and I’m not sure which would have to take place to address Scalia’s concerns about federal judges. But what does it say about attitudes about drug laws when a conservative former prosecutor like Nathan Deal and a conservative justice like Antonin Scalia opine about the problems created by taking the hardest line?

– By Kyle Wingfield

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