James M. Redwine

Democrat

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.

Judges and Politics

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In 2000 the Florida Supreme Court gave the presidency to Democrat Al Gore. Five judges on the U.S. Supreme Court reversed the Florida court and gave the presidency to Republican George W. Bush.

Bush won by two electoral votes. Gore barely won the popular vote. Three of the justices of the U.S. Supreme Court who dissented, John Stevens, David Souter and Ruth Bader Ginsburg, wrote:

“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Judges may make mistakes. Judges may be ignorant or lazy or may have any number of faults. The one characteristic judges must not have is a public perception of prejudice for or against persons or beliefs.

The only thing judges must bring to their role in our government is the ability to engender public confidence in the integrity of their decisions. We may, and I often do, disagree with judicial decisions (by other judges of course). However, if we have confidence the judges acted impartially, we can accept even bad rulings and move on.

That is why Canon 4 of the Code of Judicial Conduct which all judges should follow requires:

“A Judge or candidate for Judicial Office Shall not Engage in Political or Campaign Activity that is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.”

The Code also prohibits a judge from publicly, e.g. in a newspaper column, endorsing or opposing a candidate for public office.

These ethical proscriptions come to mind as I am currently engaged in helping to teach an internet course to judges for the National Judicial College. Judges from several states are participating as students or faculty. As with much of the judicial education in which I have been involved, in this course there is a great deal of side banter about many topics. In this current presidential campaign cycle politics is unavoidable. But unlike non-judicial conversations where my friends and family do not hesitate to state that one candidate is less than desired while the other must be elected, with judges I am reminded of the attitude Romeo’s friend, Mercutio had.

You may recall that in William Shakespeare’s play Romeo and Juliet the two families, Romeo’s Montagues and Juliet’s Capulets, were constantly feuding. In Act III, scene 1 Mercutio is stabbed by Juliet’s relative, Tybalt. As Mercutio lies dying he curses both sides by calling for, “A plague on both of your houses”. That pretty well sums up the ethical positions of my judicial colleagues.

Reality Politics

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There have been bunches of people running for the Democrat and Republican nominations for President. It is possible some of them have constructive ideas on addressing issues such as war, healthcare, jobs and pollution. Perhaps some of them are neither venal nor stupid. Most of them are familiar with and even good friends with one another, or were. Many of them have served in public positions of trust. So I ask you, what don’t we know about their positions and why don’t we know?

President Barack Hussein Obama was reelected November 6, 2012. November 7, 2012 the pundits of the national media began handicapping the 2016 race. Did these purveyors of political propaganda seek to inform us about the policies of the potential contenders? With a clean slate and three years to investigate and analyze the bona fides of that extremely small sample of Americans who might soon lead the Western World, did the media strive to have us informed so we could make rational choices? Did the organizations which proudly call themselves “News” outlets eschew ratings for information?

We have had numerous events called debates involving both major party candidates. You may wish to fact check my memory, but to my recollection no one has had more than twenty minutes at a time, usually two minutes or less, to outline and explain the candidates’ plans governing America. It takes Peg longer than that to assign my weekend chores.

I recall Robert Kennedy responding to criticism of his motives for running in 1968. He said, “Isn’t it possible I just want to serve?” Is it vital to our country’s interest to turn debates that should be about issues into mud wrestling? Does the media think so little of the average American’s intellect that questioners must push for ad hominem attacks on other candidates instead of logical responses to positions?

Even when a candidate is interviewed one-on-one the opening question is never about the interviewee’s own plans. It is always some red-meat gambit such as, “Your opponent says you are a tea sipping progressive. Is your opponent competent to launch a nuclear strike against Iceland?” Should a candidate be adroit enough to reply, “You may want to address that question to the other candidate”, the media ratings hog will demand a negative response or announce a lack of backbone during the inevitable one-way post-interview.

I suggest if we abhor dog and cock fights, we should afford our future president at least that much civility.