Intractable problems such as judicial ethics and separation of powers are often intractable because we attempt to apply an inapplicable solution to them. If we notice one of our vehicle tires with a nail in it continues to lose air no matter how many times we air it up, it is time to remove the tire and remove the nail.
The United States Supreme Court’s image is not being denigrated by CNN, MSNBC and most other news outlets because its justices and their families receive emoluments but because some groups do not like some of the decisions of some justices. Politics, not ethics is the petard that is being raised to demand Supreme Court justices decide cases the “right” way or else.
But politics, not ethics is the proper tool to address judicial ethical issues. Our Constitution already has remedies for controlling judicial behavior. Article I, Section 9 contains the Emoluments Clause and Article I of the Constitution sets forth the procedure for removing government officials for treason, bribery or other high crimes and misdemeanors. And Article III provides federal judges only retain their positions “during good behavior” and it is up to Congress what that entails.
The proper solution for changing a court’s policy decision a majority of Americans do not agree with is to change the judges, not assail their character. Some justices are championed by some segments of our society and castigated by other segments. For example, Clarence Thomas is vilified by liberals who deified Ruth Bader Ginsburg who was abhorred by conservatives. Yet both Thomas and Ginsburg, and most other justices, have accepted expensive favors from numerous groups and individuals. Such “unethical” behavior only becomes an issue when raised in the context of which president nominated the justices.
Currently America accepts without demurral that justices Roberts, Kavanaugh, Gorsuch, Coney-Barrett, Alito and Thomas are “G.O.P.”/conservatives and Brown, Kagan and Sotomayor are Democrat/liberals. These designations are not even debated except when, rarely, Roberts wanders over to just left of center. In other words, America knows each justice was selected for her or his views in a political process and by politicians but without input from the general citizenry.
America does not need to engage in attempts to control judges by imposing ethical constraints. What we need is to subject all three equal and separate branches to the will of the citizenry whose lives are defined by the politicians of all three branches. As I have been saying publicly and in print for several years, elect all judges and establish term limits for them.
The best remedy for establishing ethical behavior is to elect judges of character who will choose the harder right over the easier wrong. Each law school needs to establish a judicial track that develops competent potential judges of good character. Then each state and the federal government should define by statute the requirements to run for a judicial office that has one set term. The president must be 35 years old (Article II of the Constitution). That seems reasonable to me. I suggest a clean felony record and 10 years of regular law practice might also be good. However, we should not have committees decide who is eligible to run for a judgeship. The American electorate should have that power after a few minimal qualifications. And a non-partisan election as part of the regular election cycle should suffice.
We can solve the judicial behavior problem best by impowering all voting Americans to choose all three branches of our government. If we are going to end our current highly political judicial selection process, let’s do so by replacing it with a system based on democracy, not cronyism.
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