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.