President Barack Obama offered a commentary on the US Supreme Court last week and suggested the Affordable Health Care Act would not be found unconstitutional by a five to four vote. He added that unelected judges would not think of contravening a law passed by a majority of democratically elected  of US Senators and US Representatives. The policy benefits and constitutionality of the Act aside, the Presidents words seem odd.

The entire Executive Branch of the Federal Government is unelected except for two positions, the Presidency and the Vice-Presidency. None of the other remaining millions of executive branch employees are elected. Cabinet members and other selected executive officers require US Senate confirmation, but so do federal judges (federal magistrates do not). Needless to say, a lot of decisions made and orders issued by executive employees never receive any judicial review. Hence, President Obama might do well by setting an example for future Presidents in ceasing and desisting from criticizing federal judges on the grounds they are unelected.

Furthermore, federal judges may be removed from office through the impeachment process. That is not just a theoretical possibility. Several federal judges at all levels have been impeached and convicted, including former Judge Alcee Hastings. Interestingly, Mr. Hastings subsequently ran and was elected to the US House of Representatives where currently he is a member of the Democratic Party representing a Congressional District in Florida. So an individual found not worthy of holding a non-elected federal judgeship, Hastings was found guilty of bribery, holds an elected federal legislative position. Such an situation undoubtedly is one known by President Obama and thereby should make him particularly cautious in raising questions about unelected federal judges.

One can argue an elected federal judiciary is superior to an appointed one, but to argue against possible decisions of particular judges on those grounds seems taking an ad hominem argument to its logical conclusion.