Justice is the end of government. ~ James Madison
A circumstance which crowns the defects of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation.... To produce uniformity in these determinations, they ought to be submitted, in the last resort, to one SUPREME TRIBUNAL. (Alexander Hamilton, The Federalist Papers, No. 22; emphasis added)
I. The Appointments Clause
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)
Alexander Hamilton addressed "the nature of the agency of the Senate in the business of appointments," which provides insight.
It will be the office of the President to NOMINATE, and, with the advice and consent
of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the
part of the Senate. They may defeat one choice of the Executive, and oblige him to
make another; but they cannot themselves CHOOSE, they can only ratify or reject
the choice of the President. They might even entertain a preference to some other
person, at the very moment they were assenting to the one proposed, because there
might be no positive ground of opposition to him; and they could not be sure, if they
withheld their assent, that the subsequent nomination would fall upon their own
favorite, or upon any other person in their estimation more meritorious than the one
rejected. Thus it could hardly happen, that the majority of the Senate would feel
any other complacency towards the object of an appointment than such as the
appearances of merit might inspire, and the proofs of the want of it destroy. (The
Federalist Papers, No. 66; italics added)
II. The Proper Standard
The nature of the institution has to be considered when an individual is nominated, and their interaction cannot be ignored, because it will affect the Court's image.
Whoever attentively considers the different departments of power must perceive, that,
in a government in which they are separated from each other, the judiciary, from the
nature of its functions, will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them. The
Executive not only dispenses the honors, but holds the sword of the community. The
Legislature not only commands the purse, but prescribes the rules by which the duties
and rights of every citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the strength or of
the wealth of the society; and can take no active resolution whatever. It may truly be
said to have neither FORCE nor WILL, but merely judgment; and must ultimately
depend upon the aid of the executive arm even for the efficacy of its judgments.
(The Federalist Papers, No. 78; CAPITAL emphasis his)
Judicial review is vital to the health of the American Republic.
The complete independence of the courts of justice is peculiarly essential in a limited
Constitution. By a limited Constitution, I understand one which contains certain
specified exceptions to the legislative authority; such, for instance, as that it shall pass
no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can
be preserved in practice no other way than through the medium of courts of justice,
whose duty it must be to declare all acts contrary to the manifest tenor of the Constitu-
tion void. Without this, all the reservations of particular rights or privileges would
amount to nothing. (The Federalist Papers, No. 78; emphasis added)
The job description is one thing, performance another.
But it is easy to see, that it would require an uncommon portion of fortitude in the judges
to do their duty as faithful guardians of the Constitution.... (The Federalist Papers, No.
78)
There are guidelines.
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; and it will readily be conceived
from the variety of controversies which grow out of the folly and wickedness of
mankind, that the records of those precedents must unavoidably swell to a very
considerable bulk, and must demand long and laborious study to acquire a competent
knowledge of them. (Alexander Hamilton, The Federalist Papers, No. 78; emphasis
added)
III. Service
The tenure of those on the bench was not extended to make them barons.
If, then, the courts of justice are to be considered as the bulwarks of a limited
Constitution against legislative encroachments, this consideration will afford a
strong argument for the permanent tenure of judicial offices, since nothing will
contribute so much as this to that independent spirit in the judges which must be
essential to the faithful performance of so arduous a duty. (The Federalist Papers,
No. 78)
The intention was to strengthen inherent weakness.
...(F)rom the natural feebleness of the judiciary, it is in continual jeopardy of being
overpowered, awed, or influenced by its co-ordinate branches; and that as nothing
can contribute so much to its firmness and independence as permanency in office,
this quality may therefore be justly regarded as an indispensable ingredient in its
constitution, and, in a great measure, as the citadel of the public justice and the
public security. (The Federalist Papers, No. 78)
Only a few would be equal to the task, and time was needed to take advantage of their talents.
There is yet a further and a weightier reason for the permanency of the judicial offices,
which is deducible from the nature of the qualifications they require. It has been
frequently remarked, with great propriety, that a voluminous code of laws is one of
the inconveniences necessarily connected with the advantages of a free government....
Hence it is, that there can be but few men in the society who will have sufficient
skill in the laws to qualify them for the stations of judges. And making the proper
deductions for the ordinary depravity of human nature, the number must be still
smaller of those who unite the requisite integrity with the requisite knowledge.
These considerations apprise us, that the government can have no great option
between fit character; and that a temporary duration in office, which would naturally
discourage such characters from quitting a lucrative line of practice to accept a seat
on the bench, would have a tendency to throw the administration of justice into hands
less able, and less well qualified, to conduct it with utility and dignity. (Alexander
Hamilton, The Federalist Papers, No. 78)
IV. Improper Liaisons
Judges must avoid costume balls.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three
departments of power; that it can never attack with success either of the other two;
and that all possible care is requisite to enable it to defend itself against their attacks.
It equally proves, that though individual oppression may now and then proceed from
the courts of justice, the general liberty of the people can never be endangered from
that quarter; I mean so long as the judiciary remains truly distinct from both the
Legislature and the Executive. For I agree, that "there is no liberty, if the power of
judging be not separated from the legislative and executive powers." And it proves,
in the last place, that as liberty 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. The Mask
Imagination is an unnecessary ingredient to a scenario when history provides illumination. For there is no mystery as to how a nominal and apparent separation comes to pass.
"...(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) But despite a fundamental violation of the separation of powers, Bush the Younger appointed John Roberts and Samuel Alito; and thus the Court packed itself.
A nominal and apparent separation was made possible by a departure from "the original intention" of the Framers, of which self-styled "conservatives" are supposedly fond. Yet the gentleman from Texas was placed in position by a detour.
On July 25, 1787 at the Federal Convention, James Madison conducted a review of how the Executive could be chosen.
"There are objections against every mode that has been, or perhaps can be proposed. The election must be made either by some existing authority under the National or State Constitutions--or by some special authority derived from the people--or by the people themselves. The two existing authorities under the National Constitution would be the legislative and judiciary. The latter he presumed was out of the question."
Nevertheless, Justice Scalia, a self-styled "conservative," first stopped the counting of ballots and then, with four of his like-minded brethren, ruled in favor of Bush on the basis of the equal protection clause in Section 1 of the Fourteenth Amendment. But, in order to do so, they ignored Section 2.
"...(W)hen the right to vote at any election for the choice of electors for President and Vice President...is denied to any...citizens of the United States, or in any way abridged, except of participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of...citizens shall bear to the whole number of...citizens (eighteen) years of age in such State." (Fourteenth Amendment, Section 2; the citation has been adjusted to reflect subsequent amendments that gave women the right to vote in all the States and that lowered the voting age to eighteen; emphasis added)
Furthermore, the involvement of the judiciary "was out of the question" because the Constitution states that the House chooses the President in an inconclusive election. The Senate does the same with respect to the Vice President. (Twelfth Amendment)
On February 13, 2016, a duly elected President was not permitted to make an appointment, when the opportunity arose, based on a remarkable statement--"The American people should have a voice in the selection of their next Supreme Court Justice"--which was used to deny a hearing and a vote on the nomination of Merrick Garland. But the self-styled "conservatives" again ran afoul of the Constitution, which they supposedly revere, when their actions are compared with those of the Framers in regard to "the nature of the agency of the Senate in the business of appointments." For Alexander Hamilton contradicts the McConnell Rule: "There will, of course, be no exertion of CHOICE on the part of the Senate." And Hamilton shows that what the Majority Leader did was an abuse of power: "They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him...." (The Federalist Papers, No. 66; emphasis added) Thus, the "one basic check on a runaway Court: presidential elections," which Professor Ackerman noted, was swept aside.
Every time there has been a disparity between the popular vote and the Electoral College, it was because of extenuating circumstances, to be generous. In four of the five cases, it was because of political shenanigans. Such was the case in 1876, 1888, 2000, and 2016, with the Republican "winning" each time. In 1824, there were four candidates, and the election was decided in the House.
But in 2016, political shenanigans were combined with the very thing the Framers feared.
One of the weak sides of republics, among their numerous advantages, is that they afford
too easy an inlet to foreign corruption. An hereditary monarch, though often disposed to
sacrifice his subjects to his ambition, has so great a personal interest in the government
and in the external glory of the nation, that it is not easy for a foreign power to give him
an equivalent for what he would sacrifice by treachery to the state....
In republics, persons elevated from the mass of the community, by the suffrages of their
fellow-citizens, to stations of great pre-eminence and power, may find compensations for
betraying their trust, which, to any but minds animated and guided by superior virtue, may
appear to exceed the proportion of interest they have in the common stock, and to over-
balance the obligations of duty. Hence it is that history furnishes us with so many
mortifying examples of the prevalency of foreign corruption in republican governments.
(Alexander Hamilton, The Federalist Papers, No. 22; emphasis added)
In 2016, Operation Crosscheck, which has received little coverage, provided the perfect platform to piggyback the Russian Connection; and the gentleman from New York rode to victory, having "won" the Electoral College. Then, because of the abuse of power by the Senate, he installed Neil Gorsuch, the Frozen Trucker Case Judge, on the Supreme Court. Later, he installed Brett Kavanaugh. Thus, two dubious elections allowed Bush the Younger and the gentleman from New York to install four Justices.
VI. "...in order to...establish justice..."
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 with the President of the United States as the choice of the people. The National Popular Vote can make it so, and, when that is done, the Electoral College can also perform its national security function.
"Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the Chief Magistracy of the Union?" (Alexander Hamilton, The Federalist Papers, No. 68)
That warning has been validated by recent events, which reinforce the importance of precautionary measures.
"With all the infirmities incident to a popular election, corrected by the particular mode of conducting it, as directed under the present system, I think we may fairly calculate," said James Madison in the House, "that the instances will be very rare in which an unworthy man will receive that mark of the public confidence which is required to designate the President of the United States."
Like the one in the human body, the appendix in the body politic is an unnecessary organ--until needed.
The union with the other branches has been disguised by a nominal and apparent separation made possible by the misrepresentation and misuse of a misunderstood institution. Yet even if the Electoral College is used properly--to thwart political shenanigans that block the popular choice and to protect national security--more must be done to not just restore the legitimacy of the Court but to raise its stature.
Hamilton addressed three basic requirements of the least dangerous branch.
First, the importance of reason.
"The judiciary...may truly be said to have neither FORCE nor WILL, but merely judgment...."
Second, awareness of its role.
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution.... Limitations...can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.... But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution...."
Third, the exercise of restraint.
"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...." (The Federalist Papers, No. 78)
VII. Crosscurrents
History has provided enough experience to inform our contemporary conduct. These are the essential elements that must be weighed--the institution, the individual, ideology, interaction, image, impact, and intersection.
A nomination must pay respect to the basic requirements. Thus, the current composition of the institution needs to be carefully considered: Is the Court meeting those requirements? And if not, what is necessary to do so? After all, the Court is a collegial body that exists to "establish justice." It is not a lifetime Cabinet with a Prime Minister in a robe, and, therefore, an individual who seeks truth--and is not a predictable vote--is invaluable. For ideology is a leading cause of blindness. But as an artist looks at a subject or object from various angles, so must the Court look at cases from different points of view.
Interaction will affect the image of the institution and its ingredients. An individual has to avoid a conflict of interest or even the appearance of impropriety while the institution, to be respected, must remember that Hamilton consistently referred to "courts of justice"--not a court of law that can be technically right and totally wrong. The impact on American jurisprudence and American lives will be significant.
The decision in Bush v. Gore has had a domino effect, and the pieces have fallen in place for those opposed to the Republic--District of Columbia v. Heller, Citizens United v. Federal Election Commission, and Shelby v. Holder. In 2008, Heller dismissed Hamilton's definition of "a well-regulated Militia," which has a chain of command with duly appointed officers under a Governor or the President, and "it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security." (The Federalist Papers, No. 29) Yet Justice Scalia agreed to the assertion of an individual right to bear arms. But guys running around with guns are no more entitled to call themselves a Militia than a citizen can claim to be a Federal agent. In 2010, Citizens United equated money with speech. In 2013, Shelby gutted the Voting Rights Act. It was a torture trifecta--an insult to reason, an abandonment of the proper role, and a lack of restraint, which secured Hamilton's confession: "...(T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the Legislature and the Executive." (The Federalist Papers, No. 78)
The intersection or union with the other branches undermines the constitutional design and endangers the freedom the separation of powers was meant to defend. Instead, it creates a political discontinuity, a condition where a minority rules the majority. And that will continue to be the case until the Electoral College is used to perform its proper functions--popular choice and national security.
"The Judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior...." (Article III, Section 1) But those who fail to meet the basic requirements do not belong on the bench. Their presence is an oxymoron, and the Constitution prescribes the remedy: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." (Article II, Section 4; emphasis added)
Judges may comprise the least dangerous branch. But they are cartographers who can do great damage. For their knowledge of latitude and longitude will determine the accuracy of the maps used to chart a course that will decide whether the Republic sails with fair winds and following seas or crashes on the shoals.
"Justice," as James Madison noted, "is the end of government. It is the end of civil society. It has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit." (The Federalist Papers, No. 51)
