James M. Redwine

democracy

Democracy At Risk

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Lake James, Indiana. Photo by Peg Redwine

Donald Trump did not find fault with his election victory over Hillary Clinton in 2016 even though many Americans were astonished. However, four years later President Trump and many others questioned President Joe Biden’s victory. Some Trump supporters even marched and more on January 06, 2021 in protest as still sitting President Trump verbally urged them on.

Former President Trump is now seeking the presidency again, but some are protesting his right to do so. These never Trumpers are asserting that Trump is now prohibited from running by Section 3 of the Fourteenth Amendment to the United States Constitution that provides:

“No person shall be a Senator or Representative in Congress or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

As many of us learned in high school, the 13th, 14th and 15th Amendments to the Constitution were ratified by Congress soon after the Civil War. Generally, the 13th prohibited slavery, the 14th provided for Due Process for Blacks, including citizenship, while the 15th gave Black men the right to vote.

I do not know about you, Gentle Reader, but I had never given a moment’s thought to Section 3 until after January 06, 2021 and until former President Trump announced his intention to run again. I do recall Alabama Governor George Wallace who defied the United States Supreme Court’s decision of 1954 in Brown vs The Topeka, Kansas Board of Education that ordered an end to school segregation. In Wallace’s inauguration address on January 14, 1963 he declared, “…segregation now, segregation tomorrow, segregation forever”. Yet, Wallace was allowed to run for the presidency only five years later in 1968 without anyone raising the 14th Amendment. America’s voters made their free democratic choice and rejected Wallace’s racist position.

The first time I heard mention of Section 3 being used to keep Trump off the ballot I remember my bemusement. Then, as the tiny tinkling of the anti-Trump candidacy tocsin became a loud tolling of ballot disqualification, my bemusement became concern.

Some who advance the preemption of Trump’s second term warn that our democracy would be in danger if he is reelected. These self-anointed saviors assert that to preserve our democracy we must assure the MAGA fanatics cannot steal our self-government. And the best way to do this is to disenfranchise them by eliminating their candidate from the ballot. Well, you see the oxymoron of saving democracy by denying it to those they dislike. Yet, that is the petard the Section 3 crowd is raising. Of course, they know that just as with Bush vs. Gore 2000, the matter will end up in the tender mercies of the majority of the U.S. Supreme Court. How did that work out for our democracy? Can you say Iraq War?

Politics is not Bean Bag. If you have never run for political office and lost, you may not appreciate the visceral impact it has. Most people have played on or supported some sports team and have experienced the disbelief and angst from some loss they attribute to a bad call by an umpire or referee. Well, I assure you, Gentle Reader, a loss of an election is a much more gut-wrenching experience.

As one of my brothers told me after he lost his only foray into local politics, “I cannot understand how I lost, everyone I talked to told me they voted for me”. No matter how graciously a losing candidate handles a loss, many of them wonder if, in fact, they won and somehow the outcome should have been otherwise. Ergo, Donald Trump was a part of that, “I can’t believe it!”, tradition. Was he wrong? Was he a poor sport? Was he a jerk? Yes, yes and yes. Did he take up arms against the United States? No.

Should we attempt to save our democracy by keeping him off the ballot? No! Let the voters decide. Part of democracy means allowing people to make poor choices or, at least, choices we dislike. However, democracy means making sure we all have the right to do so.

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.

 

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.

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!

Political Winds Should Shift

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President Biden has promised to nominate an African American woman to replace retiring Associate Supreme Court Justice Stephen Breyer. The U.S. Supreme Court is generally accepted as having a liberal wing: Breyer, Sonia Sotomayor and Elena Kagan; and a conservative wing, Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch. Chief Justice John Roberts and Brett Kavanaugh vacillate but tend toward the conservative side.

The liberals were nominated by liberal Democrat presidents and the conservatives and semi-conservatives were nominated by conservative Republican presidents. Each American president was elected by majority popular vote and the Electoral College. The philosophies and political positions of each president were well known to the electorate beforehand via contested campaigns. Most voters are aware the members of the Supreme Court, and all other federal judges, are nominated by whoever the president in office is whenever there is a vacancy on a federal court or when a newly created court needs a judge.

But whereas our presidents, due to the 22nd Amendment to the Constitution, may serve only two, four-year terms, Article III section one of the Constitution provides federal judges … “[s]hall hold office during good behavior.” Although it has never been tested, this provision has normally been viewed as providing life-time tenure for federal judges. And since the U.S. Supreme Court under the guidance of Chief Justice John Marshall in 1803 took for itself the power to determine what our Constitution means, if the issue arises the members of the Supreme Court will themselves decide if they should have life-time jobs. See Marbury vs. Madison (1803), 5 U.S. 137.

Therefore, the Constitution might have to be amended to set term limits for federal judges. However, we have amended our founding document twenty-seven times already so we could do so again. An amendment takes a vote by 2/3 of each body of Congress and ratification by 3/4 of the states. That is how women finally got the right to vote and we all got numerous other rights such as Freedom of Speech.

The debate over whether Supreme Court justices are political is vacuous. They are chosen via a political process. They represent a third branch of our political system. We casually identify the justices as liberals or conservative or swing votes. The Supreme Court is a political creation and remains a political part of our democracy, by design. The issue we should be discussing is what is good for America and the answer is limited terms for federal judges. If a president can be elected because of her or his policies then replaced no later than eight years later by someone with different views and a different background, so should courts have their particular perspectives and prejudices evolve every few years. We should not have to wait for Mother Nature to get new and diverse views from justices and other federal judges.

Judges, just like every other human, have prejudices and political leanings. That is not only to be expected but should be celebrated in our democracy. The fact, and it is a fact, that every judge brings her or his background to the Bench should not be news. However, America needs to protect itself from entrenched partisan views being cast in biological stone. A ten-year term for all federal judges is 25% longer than a president’s maximum allotment. Ten years is plenty and if we provide a life-time pension for ex-judges as is already set out in 28 U.S. Code §294 we should have no problem getting qualified judges to serve.

Football vs. Politics

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Democracy is messy but usually bloodless. Football is sweaty and sometimes painful. Football teams choose representative colors such as black and orange or cream and crimson. American politics are red versus blue. Football teams are led by coaches and financed by taxpayers or fat cats. Political parties are led by politicians and financed by drips and drabs via the internet or fat cats. Football teams have a few stars supported by several Sherpas. I was happy to be one of the Sherpas on the Pawhuska, Oklahoma high school Huskies football team a while ago and enjoyed every minute of it, except for wind sprints of course. I am still enjoying supporting the Huskies team which is undefeated and on their way to what I hope will be Pawhuska’s first state championship in football.

Political parties have a few stars supported by, usually, faceless minions. Football teams have one mission, to win, whoever the opponent is. Political parties believe their mission is to provide better government than competing political parties would provide. I will leave it up to you, Gentle Reader, if you believe any political party manages to achieve this goal.

Both football teams and political parties are governed by rules of procedure and conduct. With football teams a conference sets the standards and with political parties governments from the local level on up to the top have a hand in determining policy and ultimate victory. Football games are controlled by officials on the field who can enforce the rules. Their rulings are immediate and not subject to appeal but some can be reviewed. Albeit the final ruling, in effect, is made by the same people who made the initial one. Political races are governed by laws and can be subject to recount, review, repeal and reversal. Football fans sometimes must just grimace and bear a referee’s egregious error, such as giving one team an extra down as in the 1990 Colorado v. Missouri game. Of course, the problem with any attempted remedy in football is it would be impossible to completely and fairly recreate the original game circumstance. On the other hand there is the benefit that, other than endless conversations over beer, the calls at football games are final. But political races such as Bush v. Gore in 2000 may end up in the U.S. Supreme Court and may never be universally accepted as final.

As for me, I am currently marveling how my alma mater, Indiana University, can be undefeated in football after many years of wandering in the football wilderness. This column was written before Michigan v. I.U. upcoming on November 7, 2020, so I am hopeful it remains valid when you read this. And I am chagrined that Oklahoma State University where I started college could have lost to Texas last Saturday. I want a recount! I know I personally saw several blown calls that might have changed the score of the Cowboy game.

Regardless, what I have decided after suffering through the entire 2020 political season and cheering (or moaning) my way along the football season is that the temporary pains that I experienced playing football pale in the excruciation caused by the clanging brass of competing political parties and noxious news anchors. I am thankful for football and am past caring about the motes in the eyes of those who do not see eye to eye with me on politics.