James M. Redwine

Justice

Other Countries Heard From

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Photo by Peg Redwine

President Kennedy gave his inaugural address January 20, 1961 when I was a senior in high school. He was concerned about the Soviet Union’s 1957 Sputnik achievement and challenged American youth to respond. That September I entered Oklahoma State University and boldly majored in physics. By June 1962 I had learned how to smoke but not learned anything that would raise concerns in Russia. I changed my major to English and then in June 1963 decided to “ask what I could do for my country” without the headaches of college level studies. I became a 1960’s Okie and headed for California. On the way I took my first foray out of the United States to Nogales, Mexico.

My friend and fellow OSU dropout, Ed Kelso, and I drove his 1954 Mercury down to the Mexican border and were waved through without so much as a question, much less a visa. We stopped at the first bar we came to and ran into my old high school classmate Jim Reed and a few other guys from Pawhuska, Oklahoma who were there on a similar journey of cultural discovery. What I noted from my brief sojourn was my high school Spanish was sufficient as long as we had U.S. Dollars. I also received my first faint awareness of how lucky I was to have been born north of the border.

Another foreign country experience was when as a member of the National Judicial College faculty I was sent for two weeks (December 1999-January 2000) to Ukraine to teach Ukrainian judges. I liked the Ukrainian people but found their lives to be quite difficult. The judges told me they frequently did not receive their small monthly salaries and the Ukrainian government often failed to provide them and their families with promised individual family housing. Also, police corruption was in full view on the streets of Kiev and workers who were supposed to help repair such public assets as the fountain in “Freedom Square” did about as much work as I did at Oklahoma State. As the old Soviet saying went, “The government pretended to pay them and they pretended to work.” I left Ukraine with a greater appreciation of what our Founders sacrificed for us.

Then in 2003 the National Judicial College sent me to Russia for a week to teach Russian judges about jury trials. The old Soviet Union abolished jury trials after the 1917 Revolution and Russia was just reinstituting them into their legal system. Peg was able to be with me on that trip and we, once again, found the Russian judges to be friendly and gracious but the Russian culture caused us great chagrin. A good cup of coffee was truly a foreign concept, but the consumption of alcohol was quite prevalent. The idea of innocent unless proven guilty was belied by the defendants being housed in metal and plastic cages in the courtroom. And when a defendant on trial for murder was marched into the courtroom by four AK47 carrying uniformed guards right in front of the jury, my American sense of justice was assaulted. It was good to get back to my Indiana courtroom with its guarantees of equal justice. Russia was interesting, but the United States was good to come home to.

Most recently (June 2022-February 2023) Peg and I completed a six-month judicial teaching mission sponsored by the American Bar Association, the East-West Management Institute and the United States Agency for International Development. I was sent to the country of Georgia that until 1991 had been part of the old Soviet Union. My duties were to make friends, observe, work with and give suggestions to Georgian judges based upon my more than forty years of experience as an American judge.

We had a wonderful experience with the Georgian judges and our newly-made Georgian friends. They could not have treated us any better. Everyone we met was positive about our involvement and open to suggestions. We would gladly return to Georgia whenever invited. Of course, we did note substantial differences between the Georgian culture and America’s. Georgia is bordered on the north by Russia and on the south by Turkey. Twenty percent of Georgia is militarily occupied by Russia; that is a constant worry for the Georgian people. Peg and I thought how different our lives in America are. Our northern border is Canada which we visited in 2018 and is about as good a neighbor as any country could have. And our southern border is Mexico that appears to want to join us.

What this 2023 Fourth of July birthday party has helped us to reflect upon is, no matter how much CNN, MSNBC, FOX News and many in government service complain about America and malign it, many of the alternatives are pretty scary. After seeing how some of the rest of the world has to live, I find the ’ole USA absolutely marvelous. America has faults and foibles, but as Francis Scott Key wrote, it is really wonderful, “That our flag is still there.”

Photo by Peg Redwine

It Is Time

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Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”

Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.

Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.

In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.

Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.

Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.

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.

 

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

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!

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