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three-branch democracy

Lemonade

May 5, 2022 by Jim Leave a Comment

Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!

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Filed Under: America, Authors, Democracy, Elections, Gavel Gamut, Judicial, Legislative, United States Tagged With: 10-year term limit for Supreme Court justices, conservatives, Dobbs v. Jackson, James M. Redwine, Jim Redwine, liberals, Planned Parenthood v. Casey, political, Roe v. Wade, Supreme Court leak, three-branch democracy

A Limited Tenure

February 3, 2022 by Jim Leave a Comment

President Biden has announced his intention to nominate an African American woman for the Senate to advise and consent for service on the United States Supreme Court. At the risk of being embroiled in a Whoopi Goldberg “Jewish is not a race issue type of discussion”, I suggest neither race nor gender is the issue for whomever is nominated.  Politics is always what membership on the Supreme Court is about.

From the highly political John Marshall (years on Court 1801-1835) to the highly political Ruth Bader Ginsberg (years on Court 1998-2020) the justices of the U.S. Supreme Court have often worn their politics on the sleeves of their robes. Marshall was nominated by President John Adams. Ginsberg was nominated by President Bill Clinton. Americans who agreed with Adams’ political positions generally agreed with Marshall’s decisions and those who leaned in Clinton’s policy directions championed Ginsberg’s. We should not be surprised if a president nominates someone whose political tendencies match the president’s. It is not a justice’s race or gender that matters; it is their philosophies.

Sometimes when a president, liberal or conservative, chooses a justice, that justice turns out on the opposite end from the president’s philosophy. President Eisenhower, a conservative, chose Earl Warren (years on Court 1953-1969) who led a liberal revolution from his position as Chief Justice. And President George H.W. Bush nominated the African American Clarence Thomas to the Bench; Black Clarence Thomas may be to the right of former slave owner Roger Brooke Taney (years on Court 1836-1864) who decided the Dred Scott case. Although it is not likely Thomas would have agreed with that particular decision.

Supreme Court justices are just like the rest of us. We carry our beliefs and prejudices throughout our lives. They change from time to time and sometimes we can overcome them. But the U.S. Supreme Court is just another political branch of our three-branch political democracy. Politicians are placed on the Court by politicians that we elect. As Plato might have said, “Only the naïve believe otherwise.”

Instead of our long-time national self-delusion that the Supreme Court is not a political force, we should acknowledge that the justices are just humans and accept reality. The best we can hope for is term limits instead of a life-time appointment. I suggest one ten-year term would be about right.

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Filed Under: America, Democracy, Gavel Gamut, Gender, Judicial, Race Tagged With: African American woman, James M. Redwine, Jim Redwine, justices philosophies, not race nor gender, Plato, President Biden, Supreme Court nominations, Supreme Court term limits instead of life-time appointment, three-branch democracy, U.S. Supreme Court, Whoopi Goldberg

Why A Blindfolded Justice?

November 17, 2017 by Jim Leave a Comment

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.

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Filed Under: America, Circuit Court, Democracy, Gavel Gamut, Internet class, Judicial, Law, National Judicial College, Posey County Tagged With: Assessor, Auditor, blindfolded justice, Circuit Court, County Clerk, Court and Case Management, executive branch, fair arbiter, Gavel Gamut, James M. Redwine, Jim Redwine, judge, judicial branch, Judicial Ethics, legislative branch, National Judicial College, NJC, politics, Posey Circuit Court, Posey County Board of County Commissioners, Posey County County Council, Posey County government, Posey County Judiciary, Prosecuting Attorney, Sheriff, Superior Court, three-branch democracy, Treasurer, Why do we even have Courts?

© 2022 James M. Redwine

 

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