James M. Redwine

Democracy

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.

 

Undermining the Courts

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At 3:30 am on Thursday, April 20, 2023 I was watching cable news anchor Alex Wagner of MSNBC, who was analyzing the controversy involving two conflicting federal court rulings concerning the abortion drug Mifepristone. Wagner pointed out the federal district judge in Texas had been appointed by President Donald Trump. Ms. Wagner did not refer to the federal district judge in the state of Washington having been appointed by President Barack Obama. Wagner opined that these diametrically opposed court holdings and the U.S. Supreme Court’s attempts to reconcile them, “Could undermine the legitimacy of the courts.”

Naturally, Gentle Reader, your first thought is what was I doing watching television at three thirty in the morning and why would I watch MSNBC at any time? As to why I was awake, hey, I’m frequently responding to urges I never had when life was new. As to why MSNBC, I watch the news with my finger on the remote so I can attempt to outmaneuver the commercials. MSNBC happened to have the court story on instead of some offer of products guaranteed to enhance weight loss and other things, so I listened in.

It was Wagner’s views on the court system, not any exposition of Mifepristone, that piqued my attention. She said on national TV what may be a sub rosa thought with many Americans, “Why should we have confidence in the independence and reliability of our federal judges?” Are federal judges acting as Socrates demanded or are they deciding cases politically? Does a federal judge’s ruling depend more on the facts and the law or the judge’s political views and those of the president who appointed them?

In his trial before the Athenian judges, Socrates admonished his judges, “To do justice, not make a present of it.” In other words, a judge’s duty is not to repay his or her appointing politician, but:

“To hear courteously; to answer wisely; to consider soberly; and to decide impartially.”

Americans have for over 200 years supported the right of judges to be a separate and independent branch of our government. However, in our current national environment, many decisions from, especially the U.S. Supreme court, but more and more frequently also from the lower federal courts due to wide-ranging injunctions from one-person federal district judgeships, are seen by many Americans as political pronouncements.

Virtually every national debate about federal judicial decisions begins with a reference to the politics of who appointed the judge or judges and the history of the judge’s political leanings. It may be difficult to recall, but before our current turbulent social environment seldom was it alleged that, as justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said in dissent to the abortion decision of Dobbs vs. Jackson, “Today the proclivities of individuals (Supreme Court Justices) rule.”

When even one third of the members of the U.S. Supreme Court publicly and in print accuse the other two thirds members of deciding cases for political reasons, it sounds an alarm about an independent judiciary. An independent judiciary is essential to maintaining our democracy. As long ago as 1835 Alexis de Tocqueville noted, “In America, practically every political question eventually becomes a judicial one.” De Tocqueville meant that Americans have confidence in the impartiality of our courts so they take their disputes to courts to be resolved.

It would be a shame if now de Tocqueville might have to conclude, “In America, practically every federal judicial question becomes a political one.” Perhaps next week, if I am still awake at 3:30 am, we might further address these volatile issues including some suggested remedies.

The Founders

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Reminder at a coffee shop in Batumi, Georgia

When our son, Jim, was stationed with the U.S. Army in Germany he visited the old Soviet Union just before the collapse of the Berlin Wall in 1989. He told us the very few other Americans he saw in what became modern Russia were easy to spot; they were the only ones smiling. I noticed that same phenomenon among the public when I worked for a couple of weeks in the Republic of Ukraine in 2000. Then when Peg and I spent a week working in Russia in 2003 we noted everyone but the two of us wore dark clothes and dark expressions.

Our recent eight-month experience working with the judiciary in the Republic of Georgia, once part of the old Soviet Union and bordering Russia, reinforced these impressions of uncertainty given out by the Georgian people who are ostensibly in a now free and democratic country; however, they appeared to us to be hedging their bets due to fear of their Russian neighbor.

Peg and I could not have been treated any more courteously than we were by our new Georgian friends who were generous and great fun to live and work among. We had a marvelous experience and learned a great deal. One thing we already knew, but had not fully appreciated until sharing with the Georgians whose small country is across the Black Sea from Ukraine, was how fortunate we are as Americans to not only be free but to feel free.

The people of Georgia were open and friendly with us whether at court, our other meeting places or on the streets. We were fully accepted, often objects of curiosity and were constantly asked, “How are things done in America?” You see, Gentle American Reader, Russia occupies 20% of the “Republic” of Georgia and is a constantly looming presence, at least mentally, in most Georgian psyches. Freedom there is established by law but is quite uneasy. The friendliness and good will of the countless Georgian citizens we worked and socialized with was unforced and generous. However, our Georgian acquaintances usually found an opportunity to express their good will and appreciation toward America and their almost universal desire to come here. It was reassuring and gratifying to experience how other people respected our home country.

I guess it is sort of like Mark Twain’s epiphany, “When I was a teenager, I could not believe how ignorant my father was, but by the time I turned 21 I was amazed at how much the old man had learned.” In much the same manner, Peg and I were brought to fully appreciate living in a truly free country. It is one thing to be physically in a country called a democracy, and it is an entirely different feeling to live in America where, as Lee Greenwood sings, “I am proud to be an American where at least I know I’m free.”

The dreams and aspirations of our new Georgian friends also affected our understanding of people risking their lives and sacrificing everything to get to America, you know, as many of our ancestors did. Even native-born Americans such as Peg and I owe huge debts to the brilliance and courage of many immigrants and their progeny who helped make these United States, as Katherine Lee Bates and Samuel A. Ward wrote in America the Beautiful, “Oh beautiful for pilgrim feet whose stern impassioned stress, a thoroughfare for freedom beat across the wilderness.”

Or as Frances Williams and Marjorie Elliot in their song Hymn to America, Let There Be Music called for, an America where, “May kindness and forbearance make this land a joyous place, where each man feels a brotherhood, unmarred by creed or race.” We recognize our country’s imperfections and sins of the past and present. But, America’s beacon of freedom expiates many of our failings. And, once one leaves America she or he understands why regardless of our shortcomings, as Neil Diamond sings, “From all across the world they’re coming to America.” Why? Because, “They only want to be free.”

Gentle Reader, haven’t you often wished you could travel back in time to when our country was founded? Wouldn’t it be something special to meet and talk with such dreamers, heroes and revolutionaries as George Washington, Thomas Jefferson, John Adams, James Madison, Alexander Hamilton and others? Perhaps we could have even joined in that difficult and dangerous struggle for freedom that now we can only read about, but thanks to them and others, we enjoy every day. Of course, who knows if we would have dared join in that revolt against Great Britain, the most powerful nation on earth in the 1700’s. And if we had lived then and had shown the courage of our Forefathers, we as they might have been blind to the hypocrisy and irony of fighting for our own freedom as we denied Native Americans, Blacks and women theirs. Heroes do not have to be perfect to strive for, “[A] more perfect union.”

Many of our Georgian friends are publicly standing up to a large portion of their government that has chosen to abide by Russia’s infiltration into Georgia. It takes courage to risk freedom to seek freedom. A large portion of the Georgian government is sympathetic to Russia while the majority of the citizens yearn for a true freedom that does not require a subtle fealty to what remains of the old Soviet Union.

Peg and I were impressed by the bravery of our Georgian friends and, especially, the boldness of the women. It reminded us of what it might have been like to know Martha Washington, Martha Jefferson, Abigail Adams, Dolly Madison and Eliza Hamilton. You know, our Founding Mothers, without whom we in America might well be the Georgians of today, “Yearning to be breathe free.” I will not name our courageous Georgian friends, both women and men, as the penalties for seeking a true democracy may well be severe. But I do admire their willingness to risk all for what our Founders risked for us. When Peg and I finally returned to Osage County, Oklahoma, U.S.A. we found ourselves gratefully humming that song by Woody Guthrie about America’s birthright, This Land Is Your Land. Apparently even depression era America felt good as long as it was free; freedom renders hardships bearable.

Our time working abroad showed Peg and me we had to leave America to truly appreciate what it might feel like to lose it. We are products of the 1960’s and have long recognized and often pointed out the U.S.A. is not perfect. But no place is and it sure beats all the alternatives we have seen. As for our Georgian friends, many of them are concerned that Russia will not respect Georgia’s 8,000 years of history and tradition and will seek to control the remaining 80% of that beautiful but small and vulnerable country.

That the concerns of numerous of our Georgian friends are well justified has been recently validated by the ruling political power’s attempt to push through two Russian influenced statutes that sought to prohibit and punish “foreign influence.” Due to strong public protests that some of our Georgian colleagues joined, the ruling party withdrew the bills, for now. However, under these proposed draconian laws, as Americans sent to Georgia to help Georgia’s judges seek more independence, Peg and I might well have come under scrutiny for our actions since our mission was fully funded by the United States Agency for International Development, the American Bar Association and the East-West Management Institute, all of which could be classified by Russia or the Georgian Parliament as “foreign influencers.” Judicial Independence is not a goal of Georgia’s controlling political party. Peg and I are glad to be home but are concerned about our Georgian friends as there is still much important and difficult work to be done and we hope America continues to “influence” our friends’ courageous efforts to do it.

Be Bold, It’s Worth It!

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Peg’s Gift! Photo by Peg Redwine

Thousands of free people gathered in front of the country of Georgia’s parliament in the capitol city of Tbilisi this past week to protest two new general laws the ruling political power, The Dream Party, wanted to impose on Georgia’s citizens. Although it has been denied by Russia, both bills were inspired by Russia’s draconian statutes that suppress dissent and oppress would-be dissenters in Russia. The Russian Duma and President Putin have managed to enact a series of laws that would make Joseph Goebbels envious and George Orwell prophetic.

Georgia’s reactionary, pro-Russian, anti-Western ruling party thought to run roughshod over freedom of speech, freedom of the press and freedom of the Georgian citizens to peacefully assemble and ask their government to address their grievances. In the case of these two new laws, the attempt by The Dream Party was to prevent foreign support for Georgian democracy and to punish by fines of up to 25,000 Georgian lari ($9,600 U.S. dollars) or even up to 5 years imprisonment, anyone who accepted foreign support of over 20% of their budget for pro-Western/anti-Russian activities and thoughts. These two statutes would have designated such support as coming from “foreign agents”, say America for example. In fact, since Peg and I were paid and dispatched to Georgia by the American Bar Association, the United States Agency for International Development and the East-West Management Institute, those two Alice in Wonderland epistemological abominations might well have resulted in our appearance in the very courts we were sent to help.

Most of Georgia’s northern border is bounded by Russia. In 2008 Russia simply drove its army into Georgia without need for much military activity and took over 20% of Georgia’s sovereign territory that it still occupies. Russia exerts great influence over much of Georgia, but a majority of Georgians see themselves as being entitled to a free and democratic country that looks to Europe and the West for its future. Russia and Georgia’s governmental majority Dream Party demur from this position.

When Peg and I were sent to Georgia beginning in June 2022 and permanently leaving 25 February 2023, we were instructed to work with several of Georgia’s judges, court staffs, attorneys, law students and university pupils with the main goal of helping to enhance judicial independence and citizen access to the justice system. We were impressed with the desire of the Georgian people for freedom and democracy and especially the goodwill we experienced as representative Americans. We made many wonderful friends and greatly enjoyed the people.

In general, Georgians like and respect America and most of them are oriented toward the West and evince western values of justice and democracy. Peg and I were reminded of our halcyon days on our college campuses and our own protests against the Viet Nam War and for the Women’s Movement and the anti-discrimination movement to help Black people. I already had my honorable discharge when I returned to campus and Peg was not subject to the draft. However, we both engaged in First Amendment activities without regard to other possible repercussions, such as cutting class.

Much of my motivation came from growing up during days of Black/white segregation and losing one of my childhood friends to combat in Viet Nam. Peg was and is, of course, a member of that class of persons most affected by gender discrimination. Those are some of the reasons we respect what the people of Georgia are standing up for. They have much to lose personally but they do not want to lose their beautiful country. Therefore, they are making the hard sacrifices and standing up for their own rights and those of all their fellow citizens. And as President Theodore Roosevelt said, “The Glory Belongs to the Ones in the Arena.” We say to our Georgian patriots, if it were easy, it would not mean much. But, since there is much to dare, we say, as did World War II General “Vinegar” Joe Stillwell, in faux Latin, “Illegitimi non carborundum!” Be bold, it’s worth it!

A reminder in a coffee shop in Batumi, Georgia. Photo by Peg Redwine
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