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Were the Framers Wrong?
February 26, 2003
By punpirate

Today, more than at any other time in our history, an administration, with the support of a compliant and thoroughly submissive Congress, has tried to fundamentally change the nature of the Executive Branch and the composition of the Judiciary, and, in the process, the laws of the land.

The intent of the Framers for the Judiciary was to ensure its independence through lifetime appointment. This might have been, in 1789, a means of that insurance, but, today, it is a means of enforcing an ideology for years after the nominator has left the political scene, and the issue of judicial ideology has been paramount even before the term "Borking" came into the political vernacular.

For example, with regard to judges at the Federal level, the gamesmanship has been extreme for more than three decades. John Dean's latest book on the nomination of William Rehnquist certainly illustrates the extreme degree to which ideology played a part in both Lewis Powell's and William Rehnquist's nomination during Nixon's tenure in office.

Too, presidents such as the Bushes and Reagan have repeatedly sought legislation the impact of which extends long beyond their longevity in office. Tax plans offered by the latest Bush extend far beyond W's time in office, and, therefore, long beyond the time he might suffer political responsibility for its effects. Ten-year tax cuts have effects on the budget long after the legislative perpetrators are gone from the political scene. As well, a bad judge confirmed in a time, such as now, of a complacent Congress without an opposition party, may have an effect, lodged in the highest courts in the land, which will echo far beyond the temporary influence of a bad politician who has somehow found his way to the highest office in the land.

After more than thirty years of blatant attempts to stack the highest courts of the land (and this applies to Federal Appeals Courts, as well, since the Supreme Court takes fewer and fewer cases each year), perhaps it's time to re-evaluate this matter of lifetime appointments. Should the public, when making a serious, but temporary, electoral mistake in electing a profoundly reactionary and ideological president suffer the judges that president nominates for their lifetimes?

Right-wing politicians have particularly played several games in this regard in recent years. They have, most recently, complained mightily about the failure of the Senate to confirm Bush's judicial nominees when the Senate had Democratic control during the last eighteen months of Bush's tenure as President (citing as proof of obstruction the extreme shortage of judges in all Federal courts around the country), but conveniently forget that Republicans, when Clinton was President, obstructed many more judicial nominations of Clinton's than did the 107th Congress. This, in itself, suggests an extreme politicization of the judicial nomination process.

Moreover, the most recent nominations (and renominations) of the Bush administration suggest a profound desire on the part of the Bush administration to fill the courts with nominees, regardless of judicial experience, who fit a certain ideological mold. The most recent example of this desire is Miguel Estrada. Touted by the Bush administration as a very necessary Hispanic on the Federal Appeal Court system of judges, this candidate has neither law instruction nor judicial experience. His nomination is regarded, even by Hispanic groups, as purely ideological and certainly not designed to further the essential rights under the Constitution of Hispanics, despite the inference of such by the Bush administration.

Indeed, his principal qualification to the Bush administration seems to be that he aided the candidate Bush in his appeal to the Supreme Court in the Bush v. Gore Florida vote count case. That he is also has been a member of Theodore Olson's law firm is a feather in his ideological cap. Nevertheless, there is nothing in the man's history, nor in his testimony before Congress, which suggests that he would be an impartial judge. There is, however, strong suggestion that he is very smart, and is both capable and desirous of bending law toward the right-wing's desires.

Should such a judge, or an Owens, or a Carswell, a Haynsworth, a Bork, a Thomas, a Scalia, a Kennedy, a Rehnquist, a Pickering, be nominated for a lifetime position? The more liberal among us would say not. The conservatives (who are still the minority in this country, whatever they assert) would say, yes, emphatically. The determining factor is not whether that nominee can meet some artificial standard for confirmation, but whether he or she can meet the greater and more universal standard of the Constitution - not the strict constructionist's view, which is subject to subtle manipulation, but, rather, the ultimate intent of the Constitution - that the Constitution determines the rights of the people in their governance, not the rights of the government in contravention of the governed, for such is the "states' rights" argument of the profoundly right-wing amongst us.

Perhaps, in a better time, there should be the frank admission of the public and their national representatives that, with regard to both legislation and the confirmation of judges that the process of both has been hopelessly compromised by ideological majorities working in concert with presidents of similar ideological bent, and that, in a better time, Congress should work toward a Constitutional amendment which admits the frailty of the Founders' arguments for judicial independence, that admits that the process of judicial nomination has been prostituted by ideological determination. That, finally, for better or worse, Federal judicial nominees should have term limits. The last thirty years have affirmed that the judiciary is not independent. The last two years have affirmed that legislative laissez-faire policy regarding long-term legislation can have disastrous effects.

For once, and for all, American voters will have to accept that their temporary, ephemeral, and thoroughly impetuous choices at the polls have long-term consequences, consequences lasting far beyond the time it takes for them to impulsively punch a button or pull a lever. The best judges, and the best legislation, for the people's interest according to the best principles of the Constitution can stand the test of time. The desires of the extremists in temporary power, now, should not. The Constitution, first and foremost, delineates the rights of the people in their governance, rather that the rights of governing over the governed.


punpirate is a New Mexico writer who wishes, at some time much later, to have a heart-to-heart chat with Mr. Jefferson on this very subject.

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