The Most Dangerous…With Lifetime Tenure

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, Brett 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]