the Framers Wrong?
February 26, 2003
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.