An immediate reaction to some Supreme Court rulings is
indignation, and, beyond the instant, there is a tendency to respond with slogans or
soundbites instead of sound policy. There
is no room for subtlety. Yet three
things must be kept in mind in respect to the judiciary—elections,
appointments, and removal. But to fixate on one—to avert our gaze—is to
share the fate of an inattentive juggler.
For the majority on the Court exists because of the first two, and a
remedy would be the third, as well as the aforementioned.
I. Introduction
BEFORE WE GET CAUGHT IN A THICKET OF THE COMMON LAW and
the Constitution, let us consider an initial abuse of power that created the contemporary
problem. It was later exacerbated; the
one led to the other. Ahhh… “Elections have consequences,” politicians
and the press never tire of telling us. But
dubious elections have consequences too, and they can be devastating.
II. Shenanigans
The 6-3 majority of the Supreme Court is a
result of events in Florida—and Pennsylvania, Michigan, and Wisconsin. The former, in 2000, made possible the appointments
of John Roberts and Samuel Alito. The latter, in 2016, led to those of Neil Gorsuch, Bruce Kavanaugh, and Amy Coney Barrett. They were all greeted by Clarence Thomas
who had been appointed in 1991.
The ascension
of Roberts and Alito was made possible because
Governor Jeb Bush’s two successive Secretaries of State, Sandra Mortham and Katherine Harris, ordered
nearly 58,000 “ex-felons,” who were ineligible under State law, removed from
the voter rolls. But the list was
inaccurate and affected Democrats disproportionately. The United States Civil Rights Commission
estimated that a minimum of 8,000 qualified voters were removed. Thus, voter
suppression carried the day and the Governor’s brother supposedly “won” by
537 votes.
The ascension of Neil Gorsuch,
Bruce Kavanaugh, and Amy Coney Barrett was made possible because Kris Kobach,
the Secretary of State of Kansas and commander of Operation Crosscheck, which
has received little coverage, provided the perfect platform to piggyback the
Russian Connection that the gentleman from New York rode to victory. Kobach’s faulty list of approximately 7
million voters was used by GOP counterparts in 27 States to remove Democratic
or Democratic-leaning voters from the rolls by claiming they were voting in
multiple States. Then, in the three
crucial States that were supposed to be the Democratic firewall, the gentleman
from New York “won” by 44,000 in Pennsylvania, 11,000 in Michigan, and 23,000
in Wisconsin. Crosscheck removed up to 344,000 in the first and 449,000
in the second. In the third, Photo ID, which is used to stop non-existent
“voter fraud,” made the difference by depressing turnout in Milwaukee.
Thus, voter suppression carried the day and the 20 electoral votes in
Pennsylvania, 16 in Michigan, and 10 in Wisconsin went to the Republican
instead of Mrs. Clinton. And so, the legitimacy of the gentleman from New
York goes beyond the question of foreign influence.
“...(T)here is
one basic check on a runaway Court: presidential elections,”
as Professor Bruce Ackerman pointed out in noting the significance of Bush
v. Gore. “The Supreme Court cannot be permitted to arrange for its own
succession. To allow (Bush the Younger) to serve as the Court's agent is
a fundamental violation of the separation of powers.... The right-wing
bloc on the Court should not be permitted to extend its control for a decade or
more simply because it has put George W. Bush into the White House.” (Emphasis added)
On July 25, 1787
at the Federal Convention, James Madison reviewed all the methods that had been
proposed—and rejected—and concluded that the Electoral College meant that “The President is now to be elected by
the people.” (The Electoral College by Lucius Wilmerding, Jr., 3 & 19) The involvement of the judiciary was
“out of the question.” Thus, Bush v.
Gore was an act of judicial usurpation.
Unfortunately, at the time of the Convention,
there was no way to reduce "the different qualifications in the different
States to one uniform rule," which left a series of hurdles. (James
Madison, The Federalist Papers, No. 52) But now, because of
the Fourteenth, Fifteenth, Nineteenth, and Twenty-sixth Amendments, there
is a national standard with consequences for States that deny or
abridge the right to vote, and, therefore, at long last, “the original intention” of James Madison and Alexander
Hamilton will come to pass that “The President
of the United States would be an officer elected by the people…” (Alexander Hamilton, The Federalist Papers, No. 69) The National Popular
Vote will make it so, and, when that is done, the Electoral College can
perform its two functions, popular choice and national security, that
is, thwart foreign influence. That would
avoid another political discontinuity, a misalignment of means and ends—a
condition where a minority rules a majority, which, as Hamilton noted, “contradicts
that fundamental maxim of republican government, which requires that the
sense of the majority should prevail.” (The Federalist Papers, No. 22)
Furthermore, “one basic check on a
runaway Court: presidential elections” will be in place.
III. Background
The Court,
when properly functioning, is a collegial body that exists to “establish
justice.” (Preamble) It is not a lifetime Cabinet with a
Prime Minister in a robe, much less a Privy Council and the Chief Justice the
reigning monarch. The tenure of those on
the bench was not extended to make them barons.
The intention was to strengthen inherent weakness; for, as Hamilton noted, the judiciary
controls neither the purse nor the sword. (The Federalist Papers, No. 78) Judges were to serve “during good behavior”;
decide cases or controversies; and, from the beginning, they issued no advisory
opinions, not even for President Washington.
(Article III, Section 1 & Article III, Section 2, Clause 1)
IV. Appointments
If the supreme
tribunal is ever to become a collegial body like the one under Chief Justice
John Marshall—who understood the
importance of reason, the Court’s role, and the
exercise of restraint, and
produced 1,042 unanimous decisions out of 1,129 cases—then the nomination and
confirmation process must be
improved. These are the essential
elements that must be weighed—the institution, the individual, ideology, interaction, image, impact, and intersection. The nature of the institution—and the current
composition of the Court—has to be considered when an individual is nominated. Ideology, a leading cause of blindness,
cannot be ignored and merits a thorough examination. That interaction affects the Court’s image. But the impact of their decisions on lives
and jurisprudence must be anticipated across a wide range of scenarios. Finally, the intersection or union with the
other branches undermines the constitutional design and endangers the freedom
the separation of powers was meant to defend.
“…(L)iberty can have nothing to fear from the judiciary alone, but would
have every thing to fear from its union with either of the other departments;
that as all the effects of such a union must ensue from a dependence of the former on
the latter, notwithstanding a nominal and apparent separation….” (Alexander
Hamilton, The Federalist Papers, No. 78; emphasis added)
V. Reform?
A Code of
Ethics is not enough. It is the bare
minimum.
VI. Recommendations
In the
meantime, some members of a 6-3 Court seem to be under the impression that the
claim of lifetime tenure implies
impunity. But “good behavior” sets the
standard.
The
provision for judicial tenure “during good behavior” is located in Article III,
Section 1…. Derelictions from “good
behavior,” on the other hand, were reachable in the English courts by a
proceeding to forfeit one’s office.
…(I)ts sole object was to remove the misbehaving appointee…. In sum, at common law there was a civil
forfeiture proceeding for “misbehavior” brought in a court, and a criminal
impeachment proceeding brought by and in the Parliament. Never, so far as I could discover, did an
English impeachment charge a breach of “good behavior”; instead the stock
charges were “high treason and other high crimes and misdemeanors.” The intermixture of these quite distinct
common law procedures and doctrines has bred analytical confusion in the United
States. (Impeachment: The
Constitutional Problems by Raoul Berger, 124-125; emphasis added)
There are
three methods of removal for those who miss the mark—resignation, impeachment,
and scire facias. The first depends upon
the individual; the second on the House and the Senate; the third on a judicial
panel.
“Energy in the
Executive is a leading character in the definition of good government....
A feeble Executive implies a feeble execution of the government. A feeble
execution is but another phrase for a bad execution; and a government ill
executed, whatever it may be in theory, must be, in practice, a bad government.” (Alexander Hamilton, The
Federalist Papers, No. 70)
The oath
requires the President of the United States to “preserve, protect and defend
the Constitution.” (Article II, Section
1, Clause 8) Then he must “take care
that the laws be faithfully executed.” (Article
II, Section 3) The Constitution is the
first law—“the supreme law of the land”—and the acts of the three branches
“shall be made in pursuance thereof.” (Article
VI, Clause 2) Thus, here, on the cusp of
theory and practice, no one is in a better position to educate the public about
what must be done regarding the judiciary in respect to appointments, ethics
legislation, and creation of a special court.
First,
appointments. The
President "shall nominate, and by and with the advice and consent of
the Senate, shall appoint...Judges of the Supreme Court...." (Article II, Section 2, Clause 2) Accordingly, he may send a Special Message to
the Senate and inform them that Mitch McConnell’s abuse of advice and consent
cannot be allowed to happen again. A law
degree, law review, a law license, a clerkship, and a favorable rating from the
ABA is only a start. Thus, the need for
a comprehensive approach—the institution, the individual, ideology,
interaction, image, impact, and intersection—is obvious and overdue. But should a future nomination be given the
McConnell treatment, the President will consider that, as Glenn Kirschner put
it, “a waiver of the Senate’s ‘advice and consent’ responsibilities.” Therefore, pursuant to the Article II,
Section 3 duty to “commission all the officers of the United States,” the
President shall do so and instruct his designee to take a seat on the Court.
Second,
regarding legislation, the President “shall…recommend…such measures as he shall
judge necessary and expedient.” (Article II, Section 3) An Emoluments Clause Act is “necessary” to
enforce Article I, Section 9, Clause 8 and insure that public officers serve
one master and adhere to the oath—“to support and defend the
Constitution…against all enemies, foreign and domestic”—by requiring them to
place their holdings in Treasury securities.
Failure to do so must be considered as evidence of bribery and, in the
case of jurists, require a removal hearing.
The First Congress acknowledged the relevant common law, such as the
writ of scire facias, in Section 14 of the Judiciary Act of 1789, and Section
21 of the Crimes Act of 1790 stated that a Judge convicted of bribery shall be
“forever disqualified to hold any office.”
Thus, a ‘Good Behavior’ Act is an “expedient” measure to acknowledge the
definition of the phrase,
as understood by Sir Edward Coke, Matthew Bacon, and Sir William Blackstone, so
that it is not rendered an oxymoron. A
special court to remove jurists who think otherwise could consist of District
and Circuit Judges, and possibly one Supreme Court Justice. (Berger,
174-175; Article III, Section 1 & Article I, Section 8, Clause 18)
Third, District and Circuit Court Judges,
who obey the rules, may want to encourage their higher brethren to do the same. But if their words fall on deaf ears, they
may want to demand that their superiors be required to do so. For good citizenship is vital “during good
behavior.”
Finally,
journalists like to say that they write the first draft of history and, with
just a bit of historical perspective, they could provide more accurate
descriptions. “To avoid an arbitrary
discretion in the courts, it is indispensable that they should be bound down by
strict rules and precedents, which serve to define and point out their duty in
every particular case that comes before them….”
(Alexander Hamilton, The Federalist Papers, No. 78; emphasis
added) And so, those Justices who
overturn settled law willy-nilly are radicals, not conservatives. Thus, whether past or present, it is better
to talk to Mr. Ed instead of Wilbur.
VII. Close
While the
least dangerous “during good behavior,” jurists can be the most dangerous with
lifetime tenure. The confusion that the
two are one and the same must change because the premise leads to a false conclusion. The Supreme Court is not, as Ken Starr would
have it, “first among equals.” The
judiciary is subject to checks and balances like the other co-equal and
co-ordinate branches, and only then can the Justices begin to be trusted “to do
their duty as faithful guardians of the Constitution….” (Alexander Hamilton, The
Federalist Papers, No. 78)
(c)2023 Marvin D. Jones. All rights reserved.
https://youtu.be/EZ98IJ0usoE
[Anywhere Is by Enya]
I. Introduction
https://www.gregpalast.com/the-great-florida-ex-con-gamernhow-the-felon-voter-purge-was-itself-felonious/
[The Great Florida Ex-Con Game by Greg Palast]
https://www.sourcewatch.org/index.php/Voter_roll_purge_in_the_2000_Florida_election
[Voter
roll purge in the 2000 Florida election by Source Watch]
II. Shenanigans
https://readersupportednews.org/opinion2/277-75/27009-voter-purges-alter-us-political-map [11-17-2014] [Operation
Crosscheck—here and first two below]
https://readersupportednews.org/news-section2/318-66/43764-focus-greg-palast-how-can-we-stop-crosscheck-and-get-our-country-back [05-25-2017]
https://www.thenation.com/article/the-crosscheck-voter-database-is-a-security-threat/ [02-02-2018]
http://marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html
[The Electoral College]
https://www.nationalpopularvote.com
[The National Popular Vote]
III. Background
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/advisory-opinion-doctrine-and-practice
[Advisory opinions]
VI. Recommendations
https://twitter.com/glennkirschner2/status/1307289996362162176
[Glenn Kirschner—Counter Senate Obstruction]
Institutes of the Laws of England by Sir
Edward Coke, A New Abridgment of the Law by Matthew Bacon, and Commentaries
on the Laws of England by Sir William Blackstone
https://youtu.be/tkksL5KYC_c
[Mr. Ed]
VII. Close
https://marvindjones.blogspot.com/2021/01/the-imperial-court.html
[The Imperial Court]
https://www.democraticundergournd.com/100218068344
[The Three Branches…Executive, Legislative,
Prejudicial]
