James M. Redwine

Peg

Lip Service

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Marjorie Taylor Greene from Georgia and some other members of Congress took a fifteen-minute recess from regular duties to raise money for the National Republican Committee. One hundred thousand dollars was raised in a quarter of an hour when Speaker of the House Kevin McCarthy pulled out his tube of used cherry flavored Chapstick and auctioned it off. McCarthy is from California so such economic disequilibrium is not surprising to Americans who follow reports of calls for five million dollar per person reparations in San Francisco and especially when Georgia’s Greene was the winning bidder.

This impromptu fundraiser took place in the halls of Congress on Tuesday, May 23rd. Such tangential matters as the then impending default on our 31 trillion dollars national debt and the 30 billion dollars worth of military armaments we have given to Ukraine pale in significance to the issue of chapped lips. Perhaps fifteen minutes spent on funding social security or avoiding a nuclear war with Russia could be squeezed into Congress’ agenda. It is certainly impressive how the essential matter of financing political campaigns could be so quickly addressed by our politicians.

Of course, America is not the only country that pays lip service to grave matters while politicians and the news media, including newspaper columnists, concentrate on bruised lips and egos. Meghan Markle sought to bring down the British monarchy before she had even joined it by demanding to use Kate Middleton’s Clarins Natural Lip Protector during a February 28, 2018 meeting of the Royal Foundation Forum. Kate and William were shocked and Meghan and Harry were offended that Kate and William were shocked. A toppling of the throne was averted by Meghan squeezing some balm out of the tube onto her finger instead of applying it directly to her lips.

The backdrop for Meghan’s royal faux pas was the first public event to initiate the Royal Foundation Forum which was established to help fund charitable causes such as mental health needs. Naturally, the failure of British etiquette by the plebeian American received more coverage than the fund raising. Harry even saw fit to highlight it in his family confessional book, Spare.

I suppose it is too much to expect the British public to be less concerned with the battle among the royals over lip gloss than the Battle of Hastings. Nor should we be surprised if our Congress can find time to quickly fund political campaigns but not the national debt. But, Gentle Reader, wouldn’t it be refreshing and bring smiles to our faces if such topics were the fodder of columnists instead of chapped and colored lips?

Change, Change, Change

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United States Supreme Court Justice Clarence Thomas was nominated by President George H.W. Bush as the replacement for Black Justice Thurgood Marshall. Thomas is the Court’s longest serving and oldest justice; he will be 75 years old in June 2023 and has been on the Court since 1991. Thomas was chosen by President Bush, a conservative Republican, because he was Black. Could Thomas have been elected to the court in a fair and open national election? I doubt it, as his nomination hearing in the Senate was, as Thomas described it, “a high-tech lynching” and his fate with the majority white electorate would have been questionable. In 1991, of the 100 senators not one was Black. Thomas was known to be archly conservative and strongly anti-abortion. Although a Black man, Thomas was denigrated by Anita Hill, a Black female attorney, during his confirmation hearing.

Thurgood Marshall was known to be a highly activist liberal lawyer whose most famous case before the Supreme Court as an attorney was the 1954 Supreme Court decision of Brown v. Board of Education of Topeka that reversed over fifty years of “Separate but Equal” precedent. Marshall was nominated to the Court in 1967 by Democrat Lyndon B. Johnson. Johnson chose Marshall mainly because he was Black.

 Both Marshall and Thomas had other qualifications to be on the Court but their race was the determinative factor. Would Marshall have been elected to the Court in a fair and open national election? I doubt it as even though his nomination hearing before the Senate was not as fractious as Thomas’, he was still vigorously opposed by several white segregationist senators. Marshall was seen as a likely activist liberal jurist and history proved that correct. White voters most likely would have refused to elect him to the Court.

Marshall and Thomas, the first Black members of the Court, and Sandra Day O’Conner, the first female member confirmed in 1981, would have almost certainly not been elected to the Court in a fair and open national election. But fortunately, times are changing, too slowly for many, but still greatly changing from the times when women could not vote and Blacks had to ride in the back of the bus.

So, if I do not believe that women, Blacks and “others” might historically have had little chance in fair and open Supreme Court elections until ceilings began to crack and color lines began to blur in the 1960’s, why do I now call for federal judges to be elected and have term limits? Because true democracy is our best hope to hasten the promise of America to the great majority of marginalized citizens who have been denied it. As that icon of the 60’s, Bob Dylan, sang:

“Come senators, congressmen

Please heed the call

Don’t stand in the doorway

Don’t block up the hall

For he that gets hurt

Will be he who has stalled

The battle outside ragin’

Will soon shake your windows

And rattle your walls

For the times they are a-changing.”

Of course, for those who have, “… suffered the slings and arrows of outrageous fortune,” change is never large enough or fast enough. However, if we mark America’s progress toward all people being equal from the date of our Constitution in 1789, hope is not hollow. Blacks who were slaves and women who could not vote in 1789 can now serve on the Supreme Court. We still have not had a Native American Supreme Court justice however they are no longer merely “Indians not taxed” for census purposes but are now citizens. Perhaps a free and fair national election would produce an Indian justice. Since the Native American voter base is so small, it is unlikely any president would nominate an Indian. However, a Native American could file to run for a seat on the Court and today maybe have a fighting chance.

The white men who wrote and have long interpreted the Constitution have not ceded their preferred positions without constant pressure. On the other hand, much has changed in over 200 years though there is still much more change needed. Old methods of autocracy masquerading as democracy will not bring opportunity for all to participate in the promises of our Constitution. Our current system of selecting members of the Court has produced two Black men and one Black woman as well as five white women and 107 white men. The system has long out-lived any efficacy it might have once had.

Our country no longer even feigns belief the Court is not a highly partisan political entity whose decisions often reek of prejudice. America should be for all citizens. We should not have an entire branch of our government in the strangle hold of a very few people, mainly one president and 100 senators. If, as many suspect, the justices on the Supreme Court are merely politicians in robes, why not make the political selection process a democratic one and let all citizens have a say? Surely fair and free national elections could do no worse than the “inside baseball” of a few, mainly white, mainly male politicians. And while we are at it, let’s institute term limits for all federal judges so we can actually live the democracy we now only pay lip service to when it comes to our Judicial Branch?

It’s Just A Number

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An ABC News/Washington Post Poll taken Sunday, May 07, 2023 of likely voters in the 2024 Presidential election had 68% of Americans saying Joe Biden is too old to be president next term. The same poll says only 44% think Donald Trump could be too old to serve. Biden is now 80 and Trump is now 76.

Joe Biden is claimed to have a fetish about sniffing the hair of women who are not his wife. Trump is alleged to have sexually assaulted several women to whom he was not married. If the American public’s fascination with sexual activity by characters on TV, in movies and books is considered in the choosing of our political leaders, we can postulate there may be a virility factor in play in choosing between our current and former president.

Apparently, the four-year difference in what will be two octogenarian relics by the end of the next term is of material importance to most voters. Neither old guy is the John F. Kennedy sex symbol he may see himself to be but the public appears to prefer its senility a little more virile, at least by reputation. Of course, it is possible neither Biden nor Trump will be on the ballot in 2024 as some dark horse may yet rush in to take all the perks of the presidency.

Of course, sexuality is only one element of a candidate’s character. We should examine the policies and performance of both Biden and Trump. In that regard, some like Trump’s stance on immigration and some like Biden’s. The same is true on the economy, cultural issues and international relations among many other issues. That is why we have elections and campaigns. But just as the coronation of King Charles III seemed to find the media concentrating on which crowns and robes Charles and Camilla donned as well as which handbag Kate carried as opposed to the substance of Charles’ vision for Great Britain’s future, it will not surprise any of us if the national media miss all the policy differences any of the candidates may have as the media focuses on the titillation of each person’s peccadilloes. Of course, the reason the media will do this is because that is what most of us are interested in. Policy is just so common.

Superannuated lotharios may be past their prime but they are more interesting than policy differences. As for me, Gentle Reader, for personal reasons, I choose to believe either Joey or Donnie or some other codger or even a 35-year-old could serve okay if the only consideration is age. Now whether we happen upon anyone who should lead this great country for the years 2025-2028, well, I must leave that lucky guess to each of you and the fickle folly of fate.

 

The Scarlet Bills

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Congress is demanding a code of ethics for the U.S. Supreme Court. So is the national news media. Congress and the media may not see eye to eye on much but they do agree that the Judicial Branch should be controlled by the Legislative Branch. It appears the ideology of Israel’s Prime Minister Benjamin Netanyahu has infiltrated the American Garden of Eden with a poisoned pome and Congress is champing to chomp.

Congress teaching ethics to the Supreme Court is like Helen of Troy teaching matrimonial loyalty to Hamlet’s mother. If Congress were medical advice providers we might say, “First heal yourselves.” Be that as it may, there is little doubt the Supreme Court could use some ethical lessons. However, as a separate and equal branch of our three-branch democratic republic, I prefer the courts remain independent even if they sometimes teeter on a fulcrum between questionable personal behavior and unquestioned legerdemain. Such cases as Dred Scott in which the one-time slave holder, Chief Justice Roger Taney who did not recuse himself, decided the Negro Dred Scott had no rights that America’s white society was bound by law to recognize come to mind.

No, Congress should not be looking for the log in the eyes of the Supreme Court but should be initiating a Constitutional amendment that would ensure America’s citizens, not a few highly partisan politicians, would have the choice as to who and for what term judges would serve. I do not know, Gentle Reader, if you have read my numerous columns on electing judges to one fairly short term. I only know for sure that Peg read them because I refused to comply with her many varied domestic demands until she did. However, if by some chance you did read them you know my preference is a truly democratic judicial selection process.

Non-partisan elections of competing, qualified judicial candidates for one 10-year term and life-time pensions are my suggestion. Advice on ethics for anyone from our Congress rings hollow.

Whose Ox?

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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.

 

Insomnia Revisited

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If you, as I, have trouble sleeping, this column should help. You may have read last week’s offering concerning the politicization of our federal courts. As warned in that article, today’s Gavel Gamut will further delve into MSNBC Alex Wagner’s suggestion that the legitimacy of America’s federal courts may be undermined by politics. If so, judicial independence and citizen confidence in our Judicial Branch may suffer.

Article III of the United States Constitution provides Justices of the Supreme Court and any lower federal court judges will be appointed by the President and confirmed by the Senate. The right for a citizen to vote for the President and the two senators from the citizen’s state of residence is the total opportunity Americans have to help select an entire branch of our three-branch government. Only the President and the one hundred senators have the constitutional right and opportunity to help select all federal judges. There are federal magistrates and specialty federal judges, such as bankruptcy referees, that are selected by either the sitting judges or special commissions. There are approximately 250,000,000 American citizens eighteen and over (eligible voters) who are cut out of all these selection procedures. So the power to select an entire branch of our government resides in 101 individuals and a few committees.

Further, when it comes to the Supreme Court, the Circuit Courts of Appeal and the District Courts, all these judges have life-time tenure and can only be removed involuntarily by impeachment. There are currently about 1,731 federal judges as appointed by a president. Since our nation’s founding in 1789, articles of impeachment have been brought against 15 federal judges of whom 8 were convicted. Therefore, the American people, except for a president and 100 senators, have no direct say in selecting or removing our federal judges who serve for life. Yet our Executive and Legislative branches are all subject to the will of the people and presidents may only serve 8 years. Our senators and congresspeople serve either 6 or 2-year terms and are subject to periodic popular, partisan elections.

Our system of federal judicial selection eliminates the populace from any control over an entire branch of our separate and equal three branch democracy. If there ever was justification for this extremely parochial and extremely partisan selection procedure for selecting federal judges, it has outlived its purposes. One hundred and one Americans should not have the power to exclude 250 million of their fellow citizens from helping to configure an entire branch of a democratic government.

A constitutional amendment to Article III may be needed if we are to ensure citizens have the option for input into selecting the extremely powerful federal judges who, already according to virtually every political pundit, legal theorist and media commentator, are the product of a shameful partisan vetting. But we have amended our Constitution 27 times for such things as the right to vote for Blacks and women, so we can do it for such an important right as selecting federal judges. Almost every federal judge whose decisions concern such general issues as guns, abortion, immigration, the environment, national defense, education, health care, public entitlements, infrastructure, interstate commerce, criminal justice, voting rights and water rights among many others, when the judge’s identity becomes public during a case, the judge’s name and his/her appointing president is mentioned. Every federal judge in every controversial case is identified as a Trump appointment, a Biden appointment, an Obama appointment or even a Bush appointment. Often the media will even identify the federal judge involved in a contentious case as a “Trump or Biden, etc.” judge. America no longer labors under a belief that federal judges are not the product of a highly partisan process. Therefore, why eliminate almost all Americans from such a transparent power struggle?

I suggest we amend the Constitution to establish a 10-year one-time term for all federal judges. Our existing federal judges who have already served 10 years would remain until the nearest federal election cycle which would not exceed 2 more years. We should pension out all sitting and future judges with their full salaries and benefits in return for them leaving the branch. Such pensions would cost us far less than we have spent in Ukraine or Iraq and we would be buying something of great value, the right to control our own judicial branch.

If we do not address our growing national internecine warfare over our highly political federal judicial selection process, we risk becoming like those countries where the people lose all confidence in the judicial process over which they have no control or even influence.

 

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