The Judicial System is a Delicate Balancing Act. Resist Efforts to Tilt It.
The role of judges in America is an interesting one as it relates to the other branches of government. Put in layman’s terms, the courts are to keep the other two branches from running off the road of sanity. OK, that may be a bit of an overstatement, but not by much.
Courts are actually slow to engage in this role. They are not eager to pick a fight. This is especially so with legislatures, seen historically as closest to the people. But they do so on occasion. It is always important when they do so.
To exercise those responsibilities well, three criteria would seem necessary:
(1) Sound knowledge of the law in all regards. This includes legal philosophy, precedent, social and political context, and more.
(2) Judicial temperament and an overriding commitment to impartiality and fairness.
(3) Independence from the other two branches and from political elements. This must be institutional and personal.
Some jurisdictions, including my own state, elect their judges. This seems to me to be a singularly bad idea. Having judges that need to campaign cannot be a good thing. Nor can the need to raise money from donors. Having them appointed, with some institutional cross checks in the appointment process, seems much wiser.
I don’t mind at all having a former politician become a justice. In fact, there is much to recommend political retreads. William Howard Taft did pretty well by us all. He brought his political experience into his deliberations. And I regret to this day that Mario Cuomo did not ascend to the Supreme Court. He would have been a giant on the court. On the other hand, electing judges gives us Roy Moore in Alabama, and many more like him.
Lifetime appointments are a fair subject for debate. I want judges to have longevity beyond office holders, but lifetime seems excessive. An intelligent debate on some sort of set limit seems practical and rational to me.
Someday, we will finally fire Mitch McConnell as Senate Majority Leader. He will note then that he was proudest of all the judges he got confirmed. It is reasonable that one would want to confirm his chosen candidates. But history will not be kind to Mr. McConnell (not that he cares) on several counts in this arena.
- Merrick Garland. The blocking of Garland’s nomination was shameful and contrary to the constitution. There was no block for such a move because no one ever before considered such an out of bounds action. It was a raw power play that stained the Senate forever. Funny, his rationale did not seem to be in play as we approached this year’s midterm elections.
- Judicial Appointments. The Senate under McConnell deserted its role on judicial nominations. There has been not even a modicum of oversight and standards. Nominees went through without even cursory examination. Requests for information? Forget about it. The record over time is likely to show people ill-suited and unqualified. They were rubber stamped by this Senate.
The very worst were called out by others. Even this White House to withdraw their nominations. Remember the guy who had never entered a courtroom in any capacity as a lawyer? What about those with open records of prejudice, hate speech, and intemperate personalities? No matter – let’s vote them in, quickly. - The Kavanaugh Fiasco: The process was terrible. The quantity of relevant information not made available for senatorial review was overwhelming. Reasonable people could argue about the charges brought against him. Whether they happened and what it means if they did are fair game for debate. But the man lied more than once in his confirmation. His conduct in the final time before the committee was unacceptable for any judge. Heck, it was unacceptable for any adult. I get that he was under very great pressure and felt personally attacked. Is the lesson learned that when it’s personal, all standards are off? That is exactly when I expect to see leadership and composure. This is the last guy I want to see weighing life changing decisions.
These sorts of thing are not, unfortunately, restricted to Washington. We see it at state level as well. My state’s Republican super-majority put a constitutional amendment about judges on the upcoming ballot. It would permanently cripple judicial independence in favor of political pressure. It is so bad that every living former governor, of both parties, have spoken out against it. We will know soon if their artfully worded title for the amendment fools enough people. This is the same legislature that failed to design electoral districts acceptable to any court – three times.
I hope that when you vote that you take into consideration what those you elect in the other two branches think about the judicial branch. The implications are huge and long lasting. Remember: When someone rails against “activist judges” they are often railing against “judges who disagree with me.” I am more interested in what traits, experience, and skills one brings to the judiciary. Let’s protect that important branch.
Bill Clontz
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