A free and independent judiciary is a cornerstone of our constitutional structure. In our system, judges are supposed to remain free of political pressure to the fullest extent possible so that they can interpret and apply our laws without having to fear political reprisals resulting from their decisions. Anybody who has successfully completed a middle school social studies class knows that in this country, the judiciary is supposed to act as a check on the other two branches of government. The notion of a free and independent judiciary is, however, being reduced to little more than a nice sentiment. In reality, the federal judiciary, as well as state judicial systems throughout the country, are increasingly under assault from both the executive and/or legislative branches of government.
As a threshold matter, it is important to remember that no judicial system in the United States can be wholly free of politics. Judges are elected to the bench in 38 states. In these states, judges have to run political campaigns just like candidates for the legislative or executive branches which, of course, includes raising money. Campaign spending in a recent Arkansas judicial election reached $1.2 million. In a relatively recent Wisconsin judicial election, the amount exceeded $2.6 million. The issues of campaign finance and money in politics are discussed frequently in the context of executive and legislative elections. The same problem appears to be growing in the judicial arena as well, but does not appear to be receiving the same level of attention. (Personally, I think the idea of an elected judge is patently silly, and totally contrary to the kind of judiciary that best fits within our constitutional democracy.)
Further, in states that do not elect judges, candidates are appointed to the bench by elected representatives. Judicial appointments thereby become campaign issues at the time of the election and re-election of those representatives, and those elected to positions of power typically appoint judges who are either members of the same political party, who share their political views, and/or who contributed significant sums to their campaign. Against this backdrop, it is completely naive to assume that all politics can be removed from the judicial appointment process. Given the foregoing, some politics in the process is inevitable, and American society has apparently decided to accept this.
Lately, however, it seems that the level of politics injected into our judicial system has far exceeded anything that even might be acceptable. Currently, the most glaring example of this problem on the judicial horizon is in the State of Kansas. The Kansas Supreme Court has apparently handed down a series of decisions on a variety of hot-button topics that have angered the Governor and state legislators. These include decisions overturning death penalty verdicts, blocking anti-abortion laws, and mandating school funding for poor districts. In response, the Kansas legislature actually threatened to suspend funding for the courts. A bill authorizing the impeachment of judges whose decisions “usurp” the power of other branches of government recently passed the Kansas Senate. Under current law, Kansas Supreme Court justices face periodic retention elections, but typically run unopposed. Both the Governor and state legislature are apparently look at ways to reign in the State’s Supreme Court including, if necessary, ways to replace sitting justices with other jurists who more closely share their views.
The vacancy left by Justice Scalia on the US Supreme Court raises many of the same issues. Obama’s designated candidate, Merrick Garland, appears to be a centrist judge. Nevertheless, the republicans in the Senate are, for the most part, refusing to do anything that would move this nomination forward. Their argument that the next President should make the appointment is both insulting and fallacious, and not even worthy of a response. Apparently, they have failed to consider the fact that the Court currently consists of an even number of justices and, as such, is incapable of deciding close cases that potentially effect the entire country. These cases will apparently be allowed to “pile up” until the Court has the full compliment of nine justices. It appears that the Nation’s need for a fully functional Supreme Court has taken a back seat to Capitol Hill political gamesmanship.
And then there is New Jersey. The New Jersey Judiciary used to be a model for the entire country. Other judicial systems looked to New Jersey for guidance on cases that presented issues of first impression in their own states. But no longer. For anyone who has not noticed lately, our Supreme Court has not had the full compliment of seven Supreme Court justices for some time. The vacancies are being filled by senior Appellate Division judges who are sitting as temporary appointees until regular Supreme Court justices can be appointed and confirmed pursuant to he appointment process envisioned by the State’s Constitution. This unusual situation stems, of course, from politics in Trenton, and from the Governor’s need to have a judiciary that will, in essence, rubber-stamp his policies. Retired Supreme Court justices have sat on panels discussing the negative impact that Trenton politics has had upon the State’s court system in general, and the Supreme Court in particular. This issues has, however, failed to receive the level of attention it deserves.
Governors and state legislators who want to pressure the judiciary into conformity with their political needs and views should try looking to history for guidance. When the Nazis came to power, Hitler was just not getting the results he wanted and needed from the regular German court system. In response, he set up what was called the “People’s Court”, the jurisdiction of which was “political” cases. For many years, the president (or chief judge) of the People’s Court was a German lawyer and party member named Roland Freisler. Videos of some of Freisler’s trials are on YouTube, and they are worth watching. A Freisler trial consisted of him screaming insults at the defendant for as long as he deemed necessary, followed by the inevitable death sentence. The proceedings in Freisler’s courtroom were so abusive and unruly that even several members of the Nazi elite were offended, and advised Hitler to remove him. Hitler’s response was that he needed Freisler to “do his dirty work”.
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