James M. Redwine

judicial branch

A Teetering Balance

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Our federal democracy is seen as having three equal branches that keep our democracy by equally asserting restraints on one another. The Legislative Branch plays its part by having 435 representatives elected for 2-year terms by citizens throughout the country along with 100 senators elected for 6-year terms. These just over 500 individuals have many functions but they really have only one power, providing or restricting funds to themselves and to the other two branches of government, the Executive and Judicial Branches.

 The Executive Branch has thousands of functionaries but its most powerful executive is the President who directly and indirectly heads the military and countless other divisions of that diverse branch. Each of those often nameless bureaucracies has untold, often nameless, functionaries whose functions may hold the key to whether our government functions.

The Judicial Branch is easy to generally designate but much more difficult for the populace and the other two branches to corral as the Judicial Branch has generally defined itself since Marbury v. Madison in 1803. In fact, the Judicial Branch jealously and vigorously spends much of its time struggling to make sure the other two branches do not infringe on its powers, the chief of which is to define what the law allows the other two branches to do.

This theory of a three equal and separate foundation of our democracy works well as long as the powers of each branch remain truly separate and fairly balanced and each branch is composed of greatly dispersed functionaries. It is not a novel observation that our great democracy has remained democratic, mostly, because it remains diverse, dispersed and divided. When power becomes concentrated in a particular individual or individuals or branch, democracy suffers and internecine competitions may arise. Such theoretical and rhetorical battles can, as our Civil War proved, break out into real battles as one or two or even all three of the branches seek dominance.

Currently, we have members of each branch asserting efforts to imprint upon our whole country the vision of a few executives, followed by a few judges, both entities being subject to the status of financial hostages from a powerful few in the Legislative Branch. Now, some may analyze our current imbroglio as evidence our three-branch theory is simply working itself out in practice. That could be true. However, I hypothesize our Founding Fathers may have neglected the Fourth Branch of our social/governmental structure, the citizenry. Normally we have an electorate that, while unhappy perhaps, still finds a way to “soldier on”.

Our current social intercourse pits about one-half of America against the other half, sort of like the times of theDred Scott v. Sandford case of 1857 that led to the Civil War. Much as when a large portion of the United States agreed with the U.S. Supreme Court that African Americans were not citizens while another large portion disagreed. Many Americans today either agree or disagree with Birthright Citizenship and several other issues. One President and at least one federal judge come down on opposite sides of this citizenship issue and probably several others.

Such matters being seen diametrically opposite by each of two of our branches and both branches awaiting input from the Legislative and more importantly the public, creates a situation where our national soul may be at war with itself. What is called for is much more equal and reasonable input from each branch, especially that Fourth Branch, the populace.

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.

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.

 

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.

Distancing

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President Lincoln reportedly used to occasionally sit on the back steps of the White House and talk to old friends who might just drop by. President Truman used to play poker at his Key West, Florida White House with ordinary folks. President Jackson invited the hoi polloi to his inauguration and they came and trashed the White House. There was a time America’s leaders thought of Americans as equals, or at least not as persona non grata. Now there are fences and armed guards at the White House and the only time a president makes personal contact with Americans is to have a photo op. Democracy is now pretty much non-democratic.

Our politicians often ascribe the responsibility for this metamorphosis to need for security, that is, fear of contact with us. I suggest it has more to do with their desire to just pick up their tax payor funded paychecks while being left alone. Kind of like getting COVID-19 checks not to work. Anyway, my experience in working for the public has been that it has not been a concern for my security or anyone else’s that has brought about such distance between public servants and the public. But it comes more from a realization that there simply is very little difference between those who control the government and those who are controlled by it, and the controllers are afraid that will be found out. At least that is true with the judicial branch and the legal system. I invite you, Gentle Reader, to return with me to at least one incident from those “thrilling days of yesteryear” to help me illustrate my concerns about the loss of direct connection to our office holders.

When the State of Indiana used justices of the peace to process most minor legal matters such as driving offenses and small civil claims, the “courts” were often held in the homes or store fronts owned by the justices. One would appear before some non-formally trained person who would dispense justice in a relaxed atmosphere and at little cost. Then we “improved” the system by requiring legally educated and licensed judges and publicly financed court facilities. Everything became more complex, costlier and more distant.

In Posey County, Indiana the County Court that replaced the Justice of the Peace system in 1975 was jammed into a portion of the 1927 Memorial Coliseum Building. The original coliseum was built as a community center. It had a swimming pool, a gymnasium, a stage for shows and a pool table. The new County Court, including the judge’s chamber, took up three small rooms next to where the pool table was. And another feature was the closet in the approximately 20-foot by 30-foot courtroom where the Daughters of the American Revolution ladies kept their regalia to be used in their meetings that also were held in the courtroom.

When I was the Chief Deputy Prosecuting Attorney for Posey County, 1976-1978, I tried six-person jury trials in that courtroom. As we had no separate jury room we would try a case then leave the jury in the courtroom alone to deliberate on their verdict. Everyone in the courtroom could reach out and almost touch everyone else. Of course, there was little pretense of confidentiality. I know it sounds bizarre but it worked okay and no one, including the judge and the attorneys, could arrogate themselves into special status. Please let me tell you about one of my favorite cases from that halcyon time.

I was a little younger then and one of the cases I prosecuted involved a misdemeanor charge against a Billy ______ who was about my age. Billy represented himself in the jury trial. After Billy and I traded accusations and insults during final arguments the judge gave the case to the jury then ordered the courtroom cleared except for the jury. Billy and I stepped out to the adjoining room where both a soft-drink machine and the pool table were located.

As we attempted to ignore one another, Billy turned to me and said, “Hey, Jim, do you play pool?” As I grew up in Pawhuska, Oklahoma at a time when the only thing other than the ball field was the pool hall, of course I played pool.

“Yeah, Billy, I play pool and I can beat you at that too. By the way, I thought you did okay in court, but be prepared for the gavel to fall.” I was much more sure of myself then.

“Jim, do you want to put anything on the pool game?”

“No, Billy, that would be illegal; go ahead and break.” I did not mention that a portion of my tuition at Oklahoma State University came from non-legal lucre.

Well, we played as the jury was busy deciding they didn’t care if I thought Billy was a menace to society; they sided with Billy. Since that trial Billy and I have had several contacts of the legal variety and you may note Billy is still playing pool but now my pool table is in my barn.

In my opinion, America could use a reprise of some of that by-gone legal system where the people who are processed and those who do the processing are not separated by layers of convolution. As Eva Peron might say, ♫ I’ll keep my promise, don’t keep your distance.” ♫

A Delicate Balance

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Five-foot, four inch tall “Little Jimmy”, James Madison, Jr. (1751-1836), applied his gigantic intellect to melding the Natural Law theory of John Locke (1632-1704) and the Separation of Powers theory of Charles Montesquieu (1689-1755) into the Constitution of the United States. Locke and Montesquieu postulated that all things being equal no person should harm another in his/her life, liberty, health or possessions. They, along with Madison, also believed that every person who has power is apt to abuse it. Therefore, governments are necessary to keep individual power in check but the power of government must also be kept in check.

According to Edgar Bodenheimer (1908-1991) in his treatise on jurisprudence:

“The basic idea of the American Declaration of Independence as well as the Bill of Rights is the recognition of the natural and inalienable rights of life, liberty, and property, as conceived by Locke, while the main body of the United States Constitution is a practical application of Montesquieu’s doctrine of separation of powers. The connection between these two doctrines in the American government is made by the theory of judicial review. The United States Supreme Court has held that, in order to guarantee the enforcement of natural rights, the power to make laws must be separated not only from the power to execute laws, but also from the power to review laws with their regard to their conformity with higher principles, as recognized by the United States Constitution. Thus, in the United States the courts, and especially the United States Supreme Court, have assumed guardianship over natural law.”

See Bodenheimer, Jurisprudence at p. 146

This separation of powers has served America well since 1789. As is to be expected in matters as complex as government and politics the powers of the three branches have each waxed and waned from time to time. However, we have always managed to keep our democracy by remaining moored to the rock upon which it was founded. Just as our founders recognized that individuals and governments will abuse power unless checked, they also recognized the danger and guarded against any of the three branches having unfettered power. The wisdom of Madison, et. al., is once again being tested. Has the Executive Branch gone outside its traces and incited violence against the Legislative Branch? Has the Legislative Branch blurred the boundaries that should keep all three branches separate by both charging an impeachment and then filling the role of the Judicial Branch by having one of its own members serve as the presiding officer at the trial? And, has the Judicial Branch been marginalized because the Chief Justice of the Supreme Court will not be serving as the neutral and detached trial judge as designed by our Founders.

For as Bodenheimer points out, “Any abuse of its power by the legislature should be curbed by the Judiciary Branch of the government, to which falls the duty of declaring void all statutes which are repugnant to the Constitution.” See Bodenheimer, Jurisprudence, at page 148. Perhaps Chief Justice John Roberts and the rest of the Supreme Court are anticipating being confronted with such an issue later.

The crimes that were committed on January 06, 2021 are being investigated and several alleged perpetrators have already been identified and charged. Numerous others will and should be. America’s normal criminal justice system can fairly and efficiently provide due process to those involved. If Donald Trump committed any state or federal crimes either on or before January 06, 2021 he can be prosecuted separately from the impeachment. And if a pardon is considered it would cover only federal offenses.

In our current test of our charter’s application, the Legislative Branch has filed an article impeaching the head of the Executive Branch, former President Donald Trump. It is alleged he engaged in:

“[H]igh crimes and Misdemeanors by inciting violence against the Government of the United States” on January 06, 2021 and for in the months preceding January 06, 2021 repeatedly issuing false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the America people or certified by State or Federal officials.

The Article of Impeachment was returned against President Donald Trump on January 13, 2021 while he was still the acting President. On January 25, 2021 after Donald Trump’s term had ended, the Article of Impeachment was sent to the Senate for trial. The Senate has set the trial to begin February 09, 2021 with Senator Patrick Leahy, Democrat from Vermont, to preside and the senators to serve as jurors.

Article I, Section Three, of the U.S. Constitution provides that in the trial of the President of the United States the Chief Justice of the Supreme Court shall preside. For reasons not yet fully explained, Chief Justice John Roberts will not be involved, so only two of our three equal branches of government will be embroiled in this matter of grave national concern. It is suggested that this is because Donald Trump is no longer President. However, that does not take into consideration the bed rock reason why the Founders made it mandatory for the Judicial Branch to be involved.

The impact of this omission upon public confidence in the fairness of the process is worthy of consideration. After all, it is not Donald Trump’s fate that is most important, but the country’s faith in the process that determines that fate. However, this faith might be shaken by a trial where the role of a “neutral and detached magistrate” is filled by a member of the body that both files and prosecutes the charge. Symbolism is important and a level scales of justice is one of our nation’s most potent and delicately balanced symbols.