Friday, January 06, 2012

The Constitution: The Judicial Branch

As we've seen, Article I of the Constitution describes the Legislative Branch, and Article II the Executive Branch. Today, Dear Readers, we continue our discussion of The Constitution with a look at Article III, which establishes the third branch of government - the Judicial Branch.

Considering the importance the Founders placed on the importance of the rule of law (as opposed to the whim of a monarch), Article III isn't very long (only three sections) and doesn't say very much. The only court specifically established by the Constitution is the Supreme Court; the rest of the judicial structure that has grown up over the years represents the Constitution's reference to "such inferior Courts as the Congress may from time to time ordain and establish" (Article III, Section 1). You can read a very good explanation of the Federal and State court systems here if you're interested (and you should be).

One of the things on which we Americans pride ourselves is the fact that we live in a country in which the rule of law is supreme. We have rights guaranteed by the Constitution, live according to laws drafted by representatives we've elected, and rely upon an independent judiciary to make sure that those laws are equally enforced and upheld. But how independent is that judiciary, really?

The justices of the Supreme Court are nominated by the President, confirmed by the Senate, and serve for life. Judges serving on other courts may be nominated and confirmed, or they may be elected for specific terms of service. The Constitution says only that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..." (Article III, Section 1). But what constitutes good behaviour, and how does that relate to the concept of an independent court system?

We've recently seen conservative Republican gadfly Newt Gingrich and other hyperconservative wingnuts rail against activist judges who legislate from the bench and should be required to appear before Congress to defend unpopular decisions. This does not augur well for an independent judiciary equal in power to the Legislative and Executive branches. I would argue that to the extent that some activist judges (whatever that means) legislate from the bench, it's because our elected lawmakers are unwilling or unable to legislate from the legislature. And as far as requiring judges to appear before Congress to defend unpopular decisions (unpopular to whom, one might ask), this is just plain silly: judges write and publish lengthy decisions that document exactly how and why they rendered the opinion they did in specific cases. Clearly, Mr Gingrich can't read.

Should judges be elected or appointed? There are arguments both ways. Judges who run for election need money to pay for their campaigns … and the Supreme Court's Citizens United decision means that they can be anonymously bought. On the other hand, judges who are appointed will usually be selected on the basis of their compatibility with the political leanings of the official who appoints them, and not necessarily on their qualifications. Perhaps the answer is to elect judges, but to have their campaigns be publicly funded to a common dollar limit.

When judges must stand for election, they need money to pay for their campaigns. Where does that money come from? Can you and I, as ordinary citizens, really expect that an elected judge can remain totally independent when he owes his election to the money provided by big donors? And beyond that, can you and I afford the same level of Platinum-Plus justice afforded to those who can hire high-powered, ultra-expensive law firms to represent them in disputes?

I've drifted away from a focus on what the Constitution says about the Judicial Branch of government, largely because the Constitution itself doesn't really say very much. In the coming weeks, I'll talk more about the interplay of the three branches of the government and how we, as concerned and involved citizens with a stake in good government, should look at the political linkages that are so important to shaping the country in which we live.

We'll pick up our discussion of the Constitution again next Monday. Tomorrow is Cartoon Saturday, and I have some other things to talk about on Sunday. In the meantime, let me know your thoughts on the three branches of government. I want this to be a discussion ... not just me bloviating like a cheap politician. We are, after all, gearing up for a momentous presidential election season which will pit tremendously differing political philosophies against each other in a contest for the right to define the country in which we live. We've all got a big stake in the argument. Let's think it through.

Have a good day. Come back tomorrow for Cartoon Saturday.

More thoughts coming.



eViL pOp TaRt said...

Mr. Gingrich's notion sounds like one of his off-the-cuff remarks that politicians make while speechifying, like his moronic one about bringing back child labor. We can stipulate (to sound like a lawyer) that sometimes the Supremes don't always make the best decision, but Congress does not exactly have a spotless reputation, either. A Justice needs to be independent of Congress, and not be dragged before a panel like some miscreant kid before an assistant principal.

Mike said...

'Clearly, Mr Gingrich can't read.'