James M. Redwine

legislative branch

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.

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.

Some News Fit To Print

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Adolf Ochs (1858-1935) pinned the motto of the New York Times newspaper: “All the News Fit to Print” in 1897. It remains on the paper’s front page today. Mottoes sometimes are more hope than substance.

In 1965, as the Viet Nam War was gearing up and 18 year old men could be drafted but could not vote, Barry McGuire (born 1935) sang ♫The Eve of Destruction♫. The lyrics included the following phrases:

“The eastern world, it is expoldin’
Violence flarin’, bullets loadin’
You’re old enough to kill but not for votin’
You don’t believe in war, but what’s that gun you’re totin’?
….
The poundin’ of the drums, the pride and disgrace
You can bury your dead but don’t leave a trace
Hate your next door neighbor, but don’t forget to say grace.”

About twenty years later in 1983 Anne Murray (born June 20, 1945) sang the song ♫A Little Good News Today♫ that included:

“I rolled out this morning
Kids had the morning news show on
…
Some senator was squawkin’ ‘bout the bad economy
It’s gonna get worse you see, we need a change in policy
…
Just once how I’d like to see the headline say
‘Not much to print today, can’t find nothing bad to say’
…
We sure could use a little good news today.”

So, Gentle Reader, I submit the following retreat from the edge of doom and a little good news for your April First consideration.

It was announced today that Sean Hannity has been hired to replace Wolf Blitzer at CNN and Joe Scarborough will be joining FOX News.

At his debut on CNN Sean Hannity reported that Hillary Clinton and Donald Trump had met with Mitch McConnell and Nancy Pelosi at Camp David where they decided to apply the national defense budget to universal health care and free college tuition for all.

The budgets for the CIA and FBI will be redirected to environmental concerns and repair of the nation’s infrastructure. McConnell was assured by Chuck Schumer there would be unanimous support for these proposals in the Senate. And in the House, Minority Leader Kevin McCarthy heaped praise on both Pelosi and Clinton as he pledged his ardent support for both.

At a conference of media anchors held just outside the gates of Camp David it was announced by Washington Post’s editor Martin Baron that the national print and electronic media were impressed with the honesty, integrity and goodwill of the Executive and Legislative branches. Baron even mentioned the anticipated wisdom of the Supreme Court that is expected to refuse to grant any delays in the implementation of the stated goals of fair and equal treatment for all Americans.

Well, Gentle Reader, that’s about all the Good News I can report. It appears the country is just brimming with good works and goodwill.

An Imbalanced Three-Legged Stool

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Why are so many people on all sides so angry about the United States Supreme Court life-time appointment? The answer may be in the question: it is an appointment and it is for life.

The true genius of the Founding Fathers was they understood power corrupts and since human beings constantly seek power it must be diffused into three branches of government. What they did not anticipate was that the Supreme Court, the Judicial Branch, would slyly usurp the power of the Executive and Legislative branches, starting with Chief Justice John Marshall and the case of Marbury versus Madison in 1803 in which the Supreme Court declared it had the power to review and invalidate or validate decisions of the other Branches.

This power of review established an inequality among the three Branches that has grown to a crisis. Where the Judicial leg of the stool has neither power of the purse nor the gun, this power of review protrudes causing an imbalance. This is exacerbated by the appointment of the justices and the manner in which the appointments are made. They are appointed for life by one person, the President, with the “advice and consent” of the Senate, i.e., one hundred more people.

Whereas the public has the right to vote for the President and each member of Congress, the public is shut out of choosing the extraordinarily powerful people in the Judicial Branch. This causes great concern for contesting groups when such personal issues as health care, police powers, control of one’s body, and distribution of tax monies may work their way from the legislative and executive bodies to the courts. For it is more true today than ever that as the visiting French philosopher and tourist Alexis de Tocqueville declared in 1835: in America, eventually every political question becomes a judicial one.

With the President, every four years we can make a change. With members of the House of Representatives, every two years the entire House can be changed and with the Senate, if we wish, in six years we can choose someone else. That is the crux of why people are so desperate to influence the choice of a Supreme Court Justice, i.e., it is not a choice made by them and it is for life.

It seems to me a rational solution is to change how we select our federal judges. Of course, I think all judges at all levels should be elected in a modified non-partisan election, but today we are just addressing the federal food fight that embarrasses and endangers us all. I suggest we put any future Supreme Court replacement on the ballot and limit their term. Of course, this will require amending the Constitution, but the Constitution has been amended many times before. Power to the People, not the politicians, is worth considering and worth the trouble it will take to make the change.

Why A Blindfolded Justice?

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You may know that for about twenty years I have been serving on the faculty of the National Judicial College where judges teach other judges to be judges. The NJC has a fairly high-tech approach due to needing to reach judges from all across America and in many foreign countries. About six years ago the College asked me and five other faculty judges to conduct a seven-week Internet class. Each faculty member is assigned areas of concentration. Mine are Court and Case Management and Judicial Ethics. If you have followed Gavel Gamut recently you may recall the other faculty and I just completed this year’s course.

Now, this week you and I could address the vicissitudes of Hoosier football or the most salacious sexual harassment scandal. Perhaps we could delve into the mysteries of competing religious philosophies or even this week’s almost certain to occur mass shooting. But I know my audience, small though it may be, and I am confident you would prefer to reflect upon the issues I hammered into the student judges via the Internet. Let’s get right to it.

May we start with the simple question, “Why do we even have Courts?” This topic might feel a little broad and somewhat amorphous. So, why don’t we narrow our focus and discuss just one court, say the Posey Circuit Court; What is its purpose?

Posey County government has numerous elements but each part can be reasonably placed in three general categories: (1) Executive, such as the Board of County Commissioners, (2) Legislative, the County Council; and (3) the Judiciary, which consists of two courts, Superior and Circuit.

The Commissioners are hired by Posey County voters to plan and execute short, medium and long-term functions, such as roads, jails and courthouses. The County Council is charged with managing the funding of all county services. I do not mean to ignore the important duties of such officers as the Prosecuting Attorney, the Sheriff, the County Clerk, the Treasurer, Assessor, Auditor and many other public servants. However we are painting with a very broad brush here; general, three-branch democracy is our subject.

Officials who engage in executive or legislative functions are not only allowed to, they are encouraged to advocate for certain policies and positions. Should Posey County have zoning and, if so, what kind? Can Posey County afford to hire more workers, and, if so, how much should they be paid? In county government there are thousands of important and often competing interests and interest groups to be advocated for and against. These are proper functions of those two branches of Posey County government. Therefore, it is altogether fitting that politics are involved. Policies are advanced and the voters decide whose policies they prefer, Democracy at work.

But, what happens when competing interests reach a conflict or an impasse? Where do citizens look to get a problem resolved? Where is there a fair arbiter? And, most importantly, where can citizens go with confidence the arbiter is not biased for or against either side? Of course, it is the Court, HOPEFULLY. However, if the Judge is perceived to be beholding to particular groups, a political party for example, people may fear any decisions the Judge makes is based less on fact than favor.

Perhaps next week you can be regaled with an even more in depth exposition of what I taught the judges about judges who may be perceived as partisan instead of blind to the identities and attachments of the people who have to appear in front of the Judge in Court.

Stock in Trade

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Abraham Lincoln who was a storekeeper before he was a lawyer is credited with the statement:

“A lawyer’s time and advice is his stock in trade.”

But if an attorney becomes a judge what is her/his stock in trade? For what do we pay our judges? It is not their time; judges receive salaries. It is not their advice; judges are not supposed to give advice, only decisions based on the evidence and the law.

And why do we need somebody whose job it is to not give advice, i.e. to keep their personal opinions to themselves and decide cases objectively?

Society has plenty of people whose role it is to suggest and execute policy. County commissioners and council people, mayors, governors and presidents come to mind.

We also have lots of people whose job it is to pass legislation and fund it. State legislatures and Congress have those duties.

Such executive and legislative bodies have not only the right but also the obligation to express opinions and advocate for their positions. We elect these people for those very purposes. We may agree or disagree with our Executive and Legislative bodies as we choose.

But where do we look for objective decisions on important matters? What gives us confidence that issues wrangled over by individuals or such public servants as presidents and senators will be resolved fairly and impartially by that third branch of government, the Judiciary?

Judges have no armies or militia. Judges cannot impose taxes or pass legislation. Why do we even listen to much less comply with a judge’s decision, especially one we disagree with?

When I have taught judges from other countries such as Palestine or Ukraine or Russia they invariably ask me how I get citizens to accept my court judgments and follow them. In many other countries the concept of the Judiciary as a separate, equal and independent branch of government is impossible for the judges themselves to grasp. They are so used to court decisions being based on the political leanings and connections of judges nobody expects an unbiased judgment. America is supposed to be different.

Of course, we are all partisan. If a sitting judge voices a political opinion we agree with, we not only may not mind, we might applaud. Yeah for our side! However, should a judge portray prejudice against persons or positions we support we lose confidence in our legal system. And that is the only stock in trade judges have, i.e., confidence the judge is impartial.

The momentary elation we experience when some judge violates her/his duty and publicly rails for or against a particular person, party or position fades rapidly when we realize the judge is acting from prejudice. This is so because we know that we may have to face a judge who decides cases on whim not law.

There are many reasons America remains the land of the free but one of the most vital reasons is our independent judiciary. Are America’s judges human? Yes. Are they prejudiced? Yes. Is the perception they are going to decide cases without allowing their prejudices to control their view of the evidence important. You know it!

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