James M. Redwine

Judicial

Affirmation Finally

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I wrote the first of my over 900 “Gavel Gamut” columns in 1990 at the request of my friend, Jim Kohlmeyer. Jim was the Posey County, Indiana Republican Party Chairman and the owner of the New Harmony Times newspaper (now The Posey County News owned by my friend, Dave Pearce).

Jim had recently purchased the paper and was desperate for filler. He asked me, the Democrat, elected, Posey County Circuit Court Judge, to write a column about “legal topics.” Jim did not care what I wrote. Since 1990 and every week since April of 2005 I have written about topics from local heroes to national issues as I saw fit. As those of you, Gentle Readers, will note, in several of my burnt offerings my wife, Peg, had to bear the brunt of my ramblings. However, most of “Gavel Gamut” has dealt with legal topics. A major theme has been the legal system, particularly judges. The federal courts and especially the United States Supreme Court have been the recipients of my chagrin over these thirty-two years during all of which I have served and am still serving as a judge myself. Although after thirty-eight years on the Bench as a partisan-elected judge I term-limited myself and now serve in other judicial venues, such as the Country of Georgia and the National Judicial College.

As I have written numerous times, my belief is that our American democracy is in danger from non-elected, life-tenured judges. I have stated this position frequently and I hold to it firmly.

However, even though I have often expected returning brickbats from those who champion appointing judges and granting them life-tenure, almost nobody has seemed to ever take umbrage from or stated their agreement with my position until October 3, 2022

Then, voila, along came that great journalist and philosopher, Fareed Zakaria whose excellent Sunday morning CNN show, GPS The Global Public Square, is the only national news program I find to contain news. On October 3, 2022 at 8:00 p.m. Fareed aired his special, “Supreme Power, Inside the Highest Court in the Land.”

Now, Gentle Readers, I am not claiming, although I wish I could, that Dr. Zakaria has ever heard of, much less been influenced by my analysis on any subject. However, his special clearly stated one of the greatest current dangers to our democracy is life-tenured members of the U.S. Supreme Court and the totally politicized method of their selection process.

            Let me say this about that (as President John F. Kennedy used to say), AMEN, brother Fareed!

Do Not Fly the Unfriendly Skies

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Photo by Jim Redwine

If you have traveled by commercial aircraft recently you can only marvel at the British security measures for the Queen’s funeral queue. From September 14 to September 19 about 250,000 people lined up for up to 24 hours to view the Queen’s coffin for less than one minute. Other than one fool who tried to touch the flag on her coffin and was immediately arrested, I am not aware of any “security incidents”.  In other words, our English cousins managed to process about 50,000 people a day without so much as a scuffle.

Now compare that to the airlines’ inability to keep many thousands, perhaps millions, of people from losing their luggage and missing their connecting flights while being prodded like cattle into uncomfortable seats next to complete strangers. And for that dubious privilege you pay enough money to purchase stock in the company. Although that may not be such a wise waste of your money.

It is not that I am unaware there may be bad people who both fly commercially and may want to harm others. Evil exists; I get it. But our response should not add to our grief. If the Brits can process 50,000 people per day and prevent any real problems, surely the airlines can manage to get a plane load of 300-350 passengers, such as fly on a Boeing 700 Series plane internationally, from point A to point B or points A, B, C, etc., within the time an airline ticket promises. After all, our tickets represent an obligation that is what we in the legal field call an adhesion contract. That is, you and I and all our fellow travelers are totally without any influence on the agreement. The airlines tell us where and when to show up and how much to pay and we show up and pay, even if we miss flights, lose luggage and wonder whom to blame but the gods. Does the Federal Aviation Administration come to mind?

Peg and I recently flew from Tulsa, Oklahoma to the country of Georgia. The cost of our tickets were such that Jesse James would have been proud. Since we were on business we paid an exorbitant rate to fly Business Class. What that got for us other than a hole in our checking account I have yet to discover. However, that is not the issue you and I are here concerned about. As instructed by the airlines, we arrived at the Tulsa airport three hours before our flight was to depart. Then we went through security and customs right there in Tulsa. Next the airlines flew us west to Denver. That is right, Gentle Reader, United Airlines flew us west to go east. The plane did not take on enough fuel in Tulsa, so when we got close to Denver we had to land in Pueblo, Colorado to refuel. That totally unnecessary stop caused us to miss our connecting flight from Denver to Munich, Germany. Once in Denver I had to stand in line for six hours, from 8 p.m to 2 a.m., to book another flight. Once we had our new flight plan we had to spend the night in the Denver airport on cots waiting to depart the next day. There were so many passengers who also missed their flights we were unable to sleep next to each other. Our flight from Denver to Chicago, yes, I had to rebook us through Chicago to Munich, took off around 11 a.m. We arrived in Chicago about 1:30 p.m. and had to wait in Chicago for our flight to Munich that took off about 10:30 that night. That was day one of our trip and we still had not left the United States. Of course, we had to go through security and customs again in Chicago before boarding the flight to Munich. The flight from Chicago to Munich was about 9 hours which took us into day two. When we got to Munich we had to wait about six hours for our flight to Tbilisi, Georgia, and, of course, go through security and customs again. By the time we got to Tbilisi at 4 a.m. Georgia time it was day three. Plus, our luggage got lost along the way. As our final destination in Georgia was the city of Batumi, that is a long car trip from Tbilisi, we had to wait in Tbilisi for two days for the airlines to find our luggage.

So, what can the airlines do to comply with the contract they have written and to treat passengers like customers instead of an inconvenience? I suggest one security and customs check at one’s initial departure airport should be plenty. At that first airport you can arrive early and give the airlines all the time that is needed to make sure one is not a danger and that one’s baggage follows along. Also, in this age of computerization, all of a passenger’s security and customs clearance information could be shared among the airlines, airports, cities and countries involved in a passenger’s trip. In our case that would have involved Tulsa, Denver, Chicago, Munich and Tbilisi and the United States, Germany and Georgia. It would also be helpful if the airlines would put enough fuel in the planes to avoid unplanned refueling stops and if the flight plans could exempt flying the wrong way.

If this approach is too sensible for the FAA and airlines, we could allow them to lose a customer’s luggage every now and then on a random basis so they do not feel superfluous. And, by the way, congratulations to the British for sending that marvelous monarch, Queen Elizabeth II, off royally. Maybe we should ask those Britons who planned and executed the Queen’s funeral to operate the airlines.

Our Two Branch Democracy

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Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

Judicial Proclivities

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Three of the United States Supreme Court’s own members Elena Kagan, Stephen Breyer and Sonia Sotomayor warn us the Court has appointed itself, instead of Congress or the EPA, the decision maker on climate policy. An outcome the three dissenters found frightening. See the dissenting opinion of Kagan as joined by Breyer and Sotomayor in West Virginia v. EPA decided June 30, 2022. What they meant was that the unelected Supreme Court installed the Judicial Branch as the policy maker for an issue, management of the environment, that should be within the Legislative Branch that is subject to democratic control, as the Court is not.

Most of us are unable to see the irony in our own actions. The same is true of the Supreme Court. The six-member majority of the Court couched its decision in terms of preserving policy making in Congress as opposed to unelected bureaucrats at the Environmental Protection Agency. But, according to the Dissent, what the Court did was simply replace the EPA with the Court as the ultimate decision maker on the broad, critical issues of environmental management.

In the similarly ironical decision Dobbs v. Jackson Women’s Health handed down 24 June 2022, the same majority set the U.S. Supreme Court up as the final policy maker on the volatile issue of abortion by deciding Roe v. Wade must be overturned and each state should decide the issue.

The same three dissenting justices warned in Dobbs that:

“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”

It is not the substance of either the EPA case or the abortion case that is our concern in today’s column. Those emotional issues of global warming and human reproduction are just too volatile and complicated to be adequately discussed in one short column. Instead, what I am struck by is the obtuseness of nine unelected, life-tenured people who arrogate themselves as final arbiters of issues so vital to the lives of 330 million Americans.  Perhaps the Supreme Court has finally brought in to focus that the justices are merely politicians on a micro scale. What I wish to discuss is how we might retain our three equal branches of government through a macro democratic process.

Does any rational observer of the Court deny the justices are simply politicians who wear black dresses and pretend to be apolitical? The justices are not to blame. If you, Gentle Reader, or I were placed by Presidential nomination and Senate confirmation on the Court, we would take our prejudices and “proclivities” with us. The problem lies not with the members of the Court but with the undemocratic way they are selected coupled with their life-time tenure. It is our Court and our Constitution and we should change both.

We have amended our Constitution 27 times. We should do so again. I suggest that the members of the U.S. Supreme Court and all federal judges be elected in a non-partisan election for one 10-year term. Once their term is honorably served, we should pay them their full salary for life and they should never serve as a judge again. The impeachment process should remain an option in case we make a mistake.

In summary, federal judges are no better or no worse than the rest of us. They are human, they have “proclivities”, they are politicians. We should drop the façade of “philosopher kings” and have our federal judges recognized as a full-fledged branch of our democracy as selected via a democratic process.

Lemonade

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Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!

When Mercy Seasons Justice

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Photo by Peg Redwine

For the past two weeks as a member of the National Judicial College’s faculty I have helped to present an online continuing education course to judges from several states. A significant portion of the course involved an examination of America’s penal system.

In general, the continuum of criminal justice runs from Deuteronomy, 10:21, to Shakespeare’s The Merchant of Venice, Act 4, scene 1. Deuteronomy provides:

“Thine eye shall not pity. It shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”

But Shakespeare’s Portia pleads with Shylock to show mercy:

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven upon the place beneath. It is twice blest: It blesseth him that gives and him that takes.

….

It is an attribute to God Himself; And earthly power doth then show likest God’s when mercy seasons justice.”

Gentle Reader, you have already discerned the Devil is in the vast distance of details between these two extremes. How should we as judges of our fellow humans devise and apply a sentence that is just for the individual in court and society in general?

The State of Indiana’s Constitution provides a foundational mandate for judges when it comes to designing and imposing sentences that both follow the law and are just; just to the defendant, to any victims and to the general public. Article I, section 18 demands that as to Indiana’s legal system:

“The penal code shall be founded on the principles of reformation, and not on vindictive justice.”

For judges to be “Strict Constructionists” and conservative followers of the Indiana charter, vengeance may play no role while reformation must be the goal. One of my fellow National Judicial College faculty mates was Judge Timothy Brauer from Oklahoma. The Oklahoma Constitution provides:

“The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property or reputation, and right and justice shall be administered without sale, denial, delay or prejudice.”

Article II, Bill of Rights,

Section II-6.

As a member in good standing of both the Indiana and Oklahoma Bars, I am bound by the Constitutions of both states. Oklahoma’s reference to justice not being for sale reminds of Socrates’ admonition to his judges in the Athenian Senate:

“A judge’s duty is not to make a present of justice, but to give judgment; and judges are sworn to judge according to the laws, and not according to their own good or pleasure.”

Plato’s Apology of Socrates.

The wisdom of basing a system of justice on mercy instead of vengeance has been recognized for thousands of years. Jesus knew society prospered when the Golden Rule and not rule by gold was the standard. And WWII war correspondent Ernie Pyle reminded all of us, especially judges:

“When you have lived with the unnatural mass cruelty that mankind is capable of inflicting on itself, you find yourself dispossessed of the faculty for blaming one poor man for the triviality of his faults.”

As judges should learn, all they have to do to do their duty in imposing sentences is to strictly follow the applicable law which includes the divine judicial quality of not straining at mercy.

Photo by Peg Redwine
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