Democracy may occasionally resemble a food fight but it is more palatable than rule by oligarchy. Or, as John Milton (1608-1674) put it in Paradise Lost, “It is better to reign in Hell than serve in heaven”.
America’s system of selecting all federal and many state judges resembles a game of inside baseball in which public money greases a machine which has little public input. The currently pending replacement of Justice Scalia is a salient example of politics in need of air and light, in other words, democracy.
My suggestion is to start by incrementally modifying our federal judicial selection process, which would most likely lead to modification of our states’ systems. I would begin by developing a pool of potential judicial candidates. This would require the United States Senate to rely on its Constitutional duty to advise and consent to the President’s nominations.
The Senate would be within its authority to formulate regulations setting forth certain criteria judicial candidates must meet before the Senate would consider them. A corollary would be if the President did nominate a qualified candidate from this pool, the Senate would have to fairly and expeditiously consider such candidate. These criteria would have to be non-discriminatory in the protected categories of gender, race, ethnicity, religion, sexual orientation, etc. However, they would be universal in requiring qualifications such as character and fitness, education, training and experience. America’s law schools and state Bar associations would surely conform their standards to the Senate’s criteria, if they were reasonable and non-discriminatory since they would want their students and members to have the opportunity to compete for federal judgeships. Thus, the federal system would, per force, lead to modification of our country’s entire manner of determining who would fill the Judicial Branch. This would help ensure independence and fairness while helping to lessen outside influences, such as from political parties or special interest groups.
While my preference would be for non-partisan elections of all judges for a term of years, if inclusion in the pool of potential judges was available to anyone who met proper requirements, other, perhaps better systems, could also be considered as long as the public maintained control.
The ultimate goal is an independent Judicial Branch made up of qualified individuals who have been selected by a democratic process. These judges should serve for set terms subject to non-partisan but democratic review. Most importantly, we should select our judges by a system that encourages them to decide cases only on the law and the facts.
America’s two greatest strengths
America’s two greatest strengths are its diversity and its democratic form of government. Our diversity provides input from the talents of many. Our three separate but theoretically equal branches of government keep power from consolidating in one group by dispersing it among the populace. The public maintains the right to hold power by having the right to vote for the Executive and Legislative Branches, both state and federal.
As for the Judicial Branch, not one federal judge is chosen by election and in many states judges are selected by a small number of people. The trend in America is that more and more judges at all levels are chosen by fewer and fewer people. The public usually has no input in such selections. These unelected judges may ostensibly stand for review every six or ten years or so, but in reality, they serve as long as they wish.
In each of these articles on America’s judiciary I have unequivocably stated I do not believe elected judges are any better or any worse than appointed ones. It is not the product that is the issue. The issues are: (1) who gets to select the judges; (2) from what pool of candidates can judges be taken; and, (3) how do we get rid of judges we do not want? In other words, does our current system by which we select some of our judges place the diversity of the Judicial Branch and our democracy at risk?
Because the country is presently concerned with the replacement of Justice Scalia, I will concentrate on the United States Supreme Court (SCOTUS). But the growing trend to eliminate the general public from control over those who judge them is an issue at all levels.
As for SCOTUS, the following facts may help illustrate my concerns. Starting with the President having the constitutional duty to nominate justices and the Senate having the constitutional duty to “advise and consent”, the general public is excluded from direct input on those whose decisions affect their lives.
The President must choose the nominees from somewhere, yet neither the Constitution nor any federal legislation gives any guidance as to what qualifications, if any, the President is to consider.
While the Constitution does not require it, all justices have been lawyers. America has over two hundred law schools. Harvard and Yale are only two of these two hundred yet all eight of the sitting justices come from either Harvard or Yale.
President Ronald Reagan attended Eureka College in Illinois. Reagan nominated Anthony Kennedy, a Catholic, white, male who graduated from Harvard.
President George Herbert Walker Bush, a Yale graduate, nominated Clarence Thomas, a Catholic, African American male who also went to Yale.
President William Clinton, a Yale graduate, nominated Ruth Bader Ginsburg, a Jewish female and a Harvard graduate. Clinton also nominated Stephen Breyer, a Jewish male who graduated from Harvard.
President George W. Bush who went to Yale, nominated John Roberts, a Catholic, white male, and a Harvard alumnus. “W” also nominated white, male, Catholic Samuel Alito who went to Yale.
President Barack Obama, a Harvard graduate, nominated one female Catholic Yale graduate, Sonia Sotomayor, and one Jewish female Harvard graduate, Elena Kagan. Obama has also nominated a replacement for Scalia. That nominee, Merrick Garland, is a Jewish male, graduate of Harvard.
It is neither nefarious nor surprising that presidents would nominate candidates from the two law schools with which they are most familiar. It is also no sin that only Jewish and Catholic judges are represented on the Court. It is probably simply the natural consequence of drawing all of the Supreme Court judges from an extremely small pool. That the culture, ethnicity, religion and numerous other sociological factors might be similar is to be expected when dealing with a small sample of Americans.
The problems that need to be addressed are the unintended weakening of diversity in the pool and a lack of democracy in the selection process. In a country of 330 million people containing 50 states, hundreds of law schools, numerous religions and ethnic backgrounds, an entire branch of government should not be populated by only two religions and two law schools, regardless of which religions and which law schools they may be. This is especially true where one person nominates the judges and the terms of those judges may extend far beyond the term of the president who nominated them.
There have been bunches of people running for the Democrat and Republican nominations for President. It is possible some of them have constructive ideas on addressing issues such as war, healthcare, jobs and pollution. Perhaps some of them are neither venal nor stupid. Most of them are familiar with and even good friends with one another, or were. Many of them have served in public positions of trust. So I ask you, what don’t we know about their positions and why don’t we know?
President Barack Hussein Obama was reelected November 6, 2012. November 7, 2012 the pundits of the national media began handicapping the 2016 race. Did these purveyors of political propaganda seek to inform us about the policies of the potential contenders? With a clean slate and three years to investigate and analyze the bona fides of that extremely small sample of Americans who might soon lead the Western World, did the media strive to have us informed so we could make rational choices? Did the organizations which proudly call themselves “News” outlets eschew ratings for information?
We have had numerous events called debates involving both major party candidates. You may wish to fact check my memory, but to my recollection no one has had more than twenty minutes at a time, usually two minutes or less, to outline and explain the candidates’ plans governing America. It takes Peg longer than that to assign my weekend chores.
I recall Robert Kennedy responding to criticism of his motives for running in 1968. He said, “Isn’t it possible I just want to serve?” Is it vital to our country’s interest to turn debates that should be about issues into mud wrestling? Does the media think so little of the average American’s intellect that questioners must push for ad hominem attacks on other candidates instead of logical responses to positions?
Even when a candidate is interviewed one-on-one the opening question is never about the interviewee’s own plans. It is always some red-meat gambit such as, “Your opponent says you are a tea sipping progressive. Is your opponent competent to launch a nuclear strike against Iceland?” Should a candidate be adroit enough to reply, “You may want to address that question to the other candidate”, the media ratings hog will demand a negative response or announce a lack of backbone during the inevitable one-way post-interview.
I suggest if we abhor dog and cock fights, we should afford our future president at least that much civility.
Hoosiers wear pajamas on Sunday morning at home. Many Floridians wear them everywhere, all the time. The only Hoosiers who wear house shoes to dinner are the same Hoosiers who play Bingo. Floridians wear house shoes to church.
The servants at Downton Abbey dress better than elected officials in Florida, well, maybe Indiana too, but you get the metaphor.
Half of God’s waiting room sits around, not in, swimming pools speaking English with funny Yankee accents while the other half mow, trim, plant and construct while speaking Spanish.
Peg and I fall into category one, but we speak proper Hoosier. We only use our high school Spanish when we leave our geriatric condo complex.
There are parks everywhere in Florida. Nobody uses them except people with dogs. Indiana does not waste farmland on parks. Hoosiers flock to the few parks they can find and play softball while Floridians remain Bingo-bound and look at all the parks.
Indiana in winter provides proper weather. Ice, snow, sleet and frostbite are reveled in by Hoosiers who honor school closings and worship tow trucks. Floridians don parkas at 60 °, give unsolicited advice to Hoosiers such as, “Just quit your job and move down here”, and ask, “What’s a tow truck?”
The grass in Indiana has the courtesy to go dormant in October and remain in repose until April. Grass in Florida prides itself on providing year round off the books employment to the three million illegal immigrants who have accepted Emma Lazarus’ open invitation on the Statue of Liberty. By the way, within a month of arrival, each traveler puts, at least, two more cars into Florida’s kamikaze traffic. Hoosiers drive cars too, but in Indiana, dodge’em as a sport is discouraged.
Hoosiers eat breakfast at breakfast time, i.e., before eight a.m. Restaurants in Florida do not even open until nine and Floridians consider it gauche to eat an egg before ten.
People in Indiana harness the Ohio and Wabash Rivers for industry and recreation. Florida is also surrounded by water, but the only ones who use the ocean are a few middle aged surfers who greet everyone with, “Hey, Dude.”
In summary, Floridians dress funny, talk funny, drive crazy and have no winter. Hoosiers are normal, but freeze half the year. If you want to contact Peg or me before spring, send us a letter.
Peg and I spent Christmas in Florida. It was sunny some of the time and the lowest temperature was 70°. Of course, because Peg was in charge, our main pastime was shopping. Oh, we could have played golf or gone to the ocean, but our major activity was avoiding being rammed on the streets by some demolition driving snowbird from New York or being rammed in WalMart by some bargain chasing octogenarian pushing a cart with one hand and a cane with the other.
I actually got to where the challenge of “dodge cart” was exhilarating. Since I am in my 70’s, I had a distinct advantage over most of the treasure hunters. However, it was not unusual for some blue-haired, tennis shoe wearing lady, clad in a tee shirt emblazoned with some catchy phrase such as, “So’s your old man”, to surprise me with a shove to the back of my knees.
According to Peg, we had to go to Florida at least once in 2015 to check on the small condo her mom gave us to make sure it was okay; it wasn’t. The first thing we ran into was a commode in need of surgery. We fixed it with only three trips to Lowe’s. Then the “new” garbage disposal leaked. Not to worry. One more trip to Lowe’s and 80 bucks did the trick.
Just as I had Peg convinced to return to where Christmas is celebrated properly, the two main windows were damaged by a rainstorm. As I am a man, I was willing to ignore things for another year, but Peg’s female side took over. She demanded we act responsibly. So we stayed to save the interior from even more rain that the Weather App predicted.
I knew the repair jobs were not that much more than we face in Indiana on a regular basis. That was not really the problem. What caused me to continually dream of a northern Christmas was the amalgam of tinsel and plastic contraptions Floridians use for Christmas decorations.
If one pictures Clement Moore’s vision from ‘Twas the Night Before Christmas then juxtaposes it with a scene from Meredith Wilson’s The Music Man, you too can have Christmas in Florida.
As Peg and I wandered around in short sleeves and short pants, we saw numerous attempts to reconcile Florida with Christmas. There were white plastic snowmen sitting on lush green lawns as they were being sprayed by automatic sprinklers. There were Santa Clauses, plastic of course, dressed in heavy red snow suits. There was the normal plethora of tiny white lights but now on palm trees.
And worst of all, there were plastic sleighs sitting in sand piles. At least they were not being pulled by eight flamingos led by a ninth with a glowing red beak.
During these Twelve Days of Christmas my thoughts have been occupied with the birth of Jesus. According to Matthew, Chapter 2, and Luke, Chapter 2, Jesus was born in Bethlehem during the reign of Herod the Great, which was from 37 B.C. to 4 B.C. The Roman emperor Pompeii conquered the area of Palestine, which included Bethlehem, in 63 B.C. Bethlehem is an ancient city whose history dates back a thousand years before Christ.
Today Bethlehem is in the West Bank area of Palestine about ten kilometers south of modern day Israel, which was carved out of Palestine in 1948 by the United Nations.
Jesus was born in the city of Bethlehem. Bethlehem was then and is now in the country of Palestine. Some who wish to deny ancient or biblical or Roman or contemporary borders may cling to the fiction that Palestine never existed and Bethlehem today is part of the so-called “Palestinian Authority”. Such legerdemain simply pours fuel on the conflagration that is the Middle East. Call it a rose or call it a thorn; Palestine is Palestine.
Just as so many who reach our shores from foreign lands know, if your child is born in the United States, he/she is an American citizen. Ergo, either Jesus was born and died a Palestinian or, if one is a believer, Jesus was born and still is a Palestinian.
When the National Judicial College had me teach fourteen Palestinian judges and lawyers, including Palestine’s Attorney General who lived in Bethlehem, I found them evenly divided between Christians and Muslims. The Attorney General was Palestinian Christian and very proud to live in the “Little Town” of Jesus’s birth. He held out hope the Prince of Peace would return and bring peace to His birthplace and the world.
In this season of hoped for peace, my thoughts have turned to the origin of our troubles in the Middle East. Until the country of Palestine was occupied by forces enabled by our power and money, America had no problems with Palestinians. There was and is no just reason for us to help oppress Palestinians. We have somehow gradually stumbled our way into a morass of injustice and intrigue.
It would be interesting to see what today’s government of Israel would do with a group of rabble rousers such as the twelve apostles as led by that radical Palestinian, Jesus. Would Jesus today, just as Jesus two thousand years ago, be arrested at the behest of the Israeli hierarchy and held in jail?
Perhaps the people of contemporary Jerusalem would call for the release of some other alleged criminal, such as a contemporary Barabbas, and call for the crucifixion of Jesus as a terrorist. If so, would we in America finally have the scales fall from our eyes or would we play the part of new Romans and be complicit? At a minimum, now that we find ourselves in this deep hole, maybe we should at least stop digging.
Anyway, Merry Twelve Days of Christmas to all and to all a peaceful New Year.