Independant judiciary?

[Iain]

Independent judiciary?

Just a couple of questions really.

I am aware that Supreme Court judges are appointed...but by whom and under what criteria?

What penalties, if any, are applicable to those who judges who reach decisions that annoy the government?

I'm doing some reading on the system over here and trying to reach some understanding, I'd like to grasp how it works 'over there' too. Some opinions would be very welcome too.

 

[Hkmp5sd]

Supreme Court Justices are appointed by the President and confirmed by Congress. Once confirmed, they are there for life. A Justice can be removed from the bench (impeached) similar to the process of impeaching the President. Otherwise, he/she is untouchable.

 

[7.62FullMetalJacket]

Supreme Court Justices (federal) and federal Judges are proposed by the Prez and disposed by the Senate under the "Advise and Consent" standard. There was a time that "Advise and Consent" meant what it said. Vett the candidate and, barring some incriminating evidence, he/she gets a vote from the floor of the Senate. But first, the candidate must be passed through the Judiciary Committee (Senate).

Then came the litmus test (abortion, affirmative action, environment, but no RKBA ). The litmus test is used by Senators to greenlight/redlight candidates based on ideology. For example, the Democrats have blocked many of Bush's nominees from getting a vote on the floor by threatening a filibuster. It takes 60 votes to break the filibuster, so the Dems have locked up the process. This is unprecedented.

Once confirmed by the Senate, the Judge serves for life.

It is very difficult to remove a judge from the bench. I believe that a judge would have to be caught molesting children during a mass murder while supervising a huge sale of narcotics to be impeached.

So, we front-load the process.

 

[Waitone]

IIRC according to our constitution only the Supreme Court is a creature of the constitution (Article III) and hence untouchable either in institution or personnel short of impeachment. You get nominated and approved as a SC justice you are untouchable except by impeachment.

All other federal courts are creatures of the legislature. Hence the legislature has control over the institution. We may do the nomination thingy but ultimately courts inferior to the SC exist at the pleasure of the legislature.

Great question since on the simmering questions right now is how do we gain control over an unaccountable, over-bearing, and arrogant judiciary. The issue is mutted right now but it will errupt once same sex marriages are legalized in one state by action of one court. It is a major constitutional issue over here.

 

[Iain]

The problem is that I am torn about the nature of the judiciary.

On one hand, as waitone points out, they are unelected and untouchable. They hold in their hands some fairly impressive powers.

On the other hand, if practitioners of the law judge entirely on the basis of the law/constitution then they have the power to undo bad laws, even illegal laws. As long as they remain untouchable they can continue to rule against illegal detention etc.

I guess it comes down to the fundamental problem with the law, it is supposed to be an objective system but is applied by human beings.

Judges sometimes have to make tough calls. For instance over here a man detained without charge for two years under terrorism laws was recently released by a court (he has developed psychiatric issues and is now under a form of home arrest). Home Secretary was in no small way annoyed and has discussed changing the law to prevent a recurrance. If a released man does commit an act of terrorism, where will that leave the legal profession? Say it was ruled illegal to hold the man as there was no evidence with which to push a prosecution, yet he was a danger. Terrible position to be in - as a lawyer recently wrote 'the problem for civil libertarians is that authoritarians have all the best rhetoric' - the rhetoric of prevention of terrorism is a powerful one.

The law has a wider duty than it's duty to government, yet I think we are witnessing an attempt (both here and there) to subjugate the judiciary. Meetings held in camera and the like - a SCOTUS judge once said that 'Democracies die behind closed doors.'

It's early days on my thoughts about this issue, comments are more than welcome.

 

[Hkmp5sd]

Meetings held in camera and the like - a SCOTUS judge once said that 'Democracies die behind closed doors.'

While SCOTUS does not allow cameras in the courtroom, you can get transcripts of the oral arguments or listen to audio recordings of them.

 

[Art Eatman]

I'm not sure what's meant by "The law has a wider duty than it's duty to government..." (And, please: The possessive has no apostrophe. )

Laws are supposed to be a set of rules for accepted behavior within a society. When written in an overly-complex manner, the intent or meaning can be open to various interpretations. The duty of judges is to be objective in ascertaining the meaning of a law. As stated earlier, however, judges are human.

The problem in a free society is that of providing protection from harm when there is no crime yet committed and the legal system is predicated upon the concept of "innocent until proven guilty". Fear of potential harm leads to such things as gun-control laws and anti-terrorism laws. These laws presume actual harm deriving from a potential for harm. That is, deny the multitude a freedom because of the possible actions of a few; restrain a possibly-innocent person because of possible future behavior.

You cannot have liberty without having risk. IMO, right now, too many people wish to avoid risk of any sort, and are thus willing to pay any price--including their liberty and rights.

Art

 

[Iain]

By 'the law has a wider duty than its duty to government' I meant that the judiciary shouldn't necessarily uphold measures that a government has passed if they contravene other factors, like a Constitution or human rights legislation. It comes down to whether or not the judges are willing to make themselves unpopular with the government or the populace by refusing to accept draconian terrorism laws or changes to the burden of proof for example.

(And you loved picking the English guy up on his grammar didn't you? You don't want me to tell you how little I consciously know of the rules of grammar.)

In camera means in secret. Which is a different thing to no TV cameras, which we don't do at all. It refers to secret hearings that are kept out of the public domain, hearings that are being used when ideas of 'national security' or 'protection of intelligence sources' are invoked.

 

[Art Eatman]

Until somebody with standing to sue brings a lawsuit in federal court to challenge the constitutionality of a law, a law stands as written. The process goes from the federal district court to a federal court of appeals and then to the Supreme Court.

At the appeals level, we have the 9th Circuit Court of Appeals in California holding that the 2nd Amendment is not an individual right, while the 5th Circuit Court of Appeals in Louisiana holds that the 2nd Amendment is indeed an individual right. This has not yet been resolved by SCOTUS. (I hope I have all the nomenclature correct about these courts. ) Note: A "circuit" is more than just the one state wherein this judiciary group is physically located. And, to further complicate things, SCOTUS can turn down the acceptance of a case for review and decision.

I think the "closed doors" refers to the behavior of Congress, rather than in our courts. Outside of the War on Terror deals, court proceedings are open to the public (limited to available space, of course). Many laws are worked up via a lot of mutual back-scratching without public debate at any length.

Art

 

[Hkmp5sd]

It refers to secret hearings that are kept out of the public domain

Oh, we just call those "secret hearings".

 

[R.H. Lee]

While I am neither a jurist nor a legal scholar, it is my understanding that we have 3 branches of government here in the U.S. The legislative (Congress) who makes law, the executive (President), who enforces law, and the judicial (ultimately, the U.S. Supreme Court), whose duty it is to INTERPRET law. The problem with the judiciary (the final arbiter) comes when a POLITICAL AGENDA overides and drives judicial decisions, rather than a strict interpretation of law based on generally accepted definitions.

This usually happens when an ACTIVIST JUDICIARY overextends its authority in order to "enact" legisislation that would not otherwise be passed by the Congress. One example might be the 9th Circuit's recent decision that the word "marriage" does not exist only between and man and a woman, although this is the generally accepted definition in our society. It seems to come from the opinion that the Constitution is a "living document" that should be interpreted or suppressed according to current constituencie's political agendas. (whims)

If that makes sense.................

 

[DMF]

I meant that the judiciary shouldn't necessarily uphold measures that a government has passed if they contravene other factors, like a Constitution . . .

In fact they don't, and if doing their duty can't, uphold a law if it violates the Constitution. That was the crux of the decision in Marbury v. Madison. As Justice Marshal wrote in the opinion for the court, "So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."

In that case there was a great deal of partisan politics at play between the Republican and Federalist parties (It wasn't always Republicans and Democrats), and the irony of the case is Marshal was a Federalist, and decided against the Federalist (Marbury) claims in the case. He did this because it was the courts duty to rule on matters of law, and as Marshal wrote in the opinion of the court, ". . . the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." The opinion struck down a Congressional attempt to upset the checks and balances of the Constitution by trying to legislate powers reserved for the Courts in Article III.

 

[longrifleman]

It is very difficult to remove a judge from the bench. I believe that a judge would have to be caught molesting children during a mass murder while supervising a huge sale of narcotics to be impeached.

Yeah, but what would it take in California?

 

[Hkmp5sd]

but what would it take in California?

Getting caught listening to Rush Limbough on the radio.

 

[Iain]

Would it be a good thing if the judiciary could be easily removed?

I'm inclined to say that it wouldn't be.

 

[Waitone]

Would it be a good thing if the judiciary could be easily removed?

The issue of easily removed vs. removed. We have a major problem over here. Both parties are deferring to the judiciary to solve legislative issues that neither party want to go on record with. The classic example is Campaign Finance Control. Both parties knew it was a stinker. Both parties were under extreme political distress. Both parties looked to the president to get them out of the mess by vetoing the legislation. The president told them, "You send it to me and I'll sign it." In other words I will not take the heat for your cowardice. We'll ignore presidential cowardice for the moment.

Law is passed and immediately is challenged and goes to the court. The court screws everyone and says the law is constitutional, something any third grader could credibly challenge. The entire system broke down and the last barracade to fall was the courts.

Something has to be done. The only way we can get to the SC is through impeachment, something the senate will not do. The constitution does allow for the legislative branch to tell the judiciary, "Keep you hands off." but it has not been implemented. To do so would create a first class constitutional crisis.

We are witnessing the ascent of American judicial tyranny and so far there has been no push-back by Joe and Martha Sixpack.

 

[longrifleman]

Would it be a good thing if the judiciary could be easily removed?

No. The original intent was to keep the judiciary removed from politics to serve as a check on the tendency of all democratic systems to degenerate into demagoguery. The system has failed, as waitone pointed out.

Until the people of this country get over their reverence for the judiciary and demand a return to the original intent of the courts as a refree and not another unelected legislative body we will essentially be ruled by an oligarcy. Don't hold your breath.

 

[Art Eatman]

Waitone, from what I've seen of people, if some law or judicial decision does not obviously and directly affect a person, that person is uninterested as to abstract analysis of the effects on others.

So, many of the Joe Sixpacks are trying to make enough money to pay the bills; Martha Sixpack's off to the mall to run up more bills, and since they don't run campaign ads they don't care about the "Reform".

Same for the non-gunners, who are unaffected by some Feinsteinian or Clintonian anti-gun law. Heck, I'll add the guy who's had a vasectomy, and is totally bored by arguments about Roe v. Wade...

Most folks here in this forum are not only impacted by a lot of the dumb or unconstitutional laws, we're also into the abstract analysis of laws affecting others besides ourselves.

We're a minority.

Art

 

[cloudkiller]

It is an interesting issue

First of all I would like to say that the discussion on this issue has been great! Excellent points made.

My personal observation has been that the independence and role of the judiciary is kind of a catch-22.

On the one hand we want a judiciary that feels free to act against majoritarian wishes, against the wishes of the political majority, etc. to uphold constitutional rights. On the other hand, we don't want the members of the judicial branch to go on personal political crusades against laws, rules, policies or cultural trends they find offensive because of their own values. If you study "civil religion" you will find that the judiciary, particularly SCOTUS, occupies the role of high-priesthood over the national sacred text (Constitution). In many ways the religious argument is accurate since most discussions that boil down to interpretation of the Constitution at our level (the level of concerned citizens) tend to parallel discussions about the meaning of specific passages in the bible, or Koran, or other religious documents. It would be both amusing and extremely informative to see a "Talmudic" Constitution, with notes and commentary by the framers written in the margins around each section. We would see Jeffersons comments about private gun ownership from an essay or letter next to the 2A for example.

In countries that have de-facto "uni-branch" governments, like many of the democracies in Latin America and Africa there is no "reverence" for the judiciary. It is seen as subordinate to the executive branch. Strong executive power also arm-twists the legislature, with the judiciary staying uninvolved, or remaining impotent. That is one of the worse states of affairs because inevitably you see the executive branch accumulating more and more authority to the point of dissolving the legislature if desired.


On a related note, Art makes a really good point here:

The problem in a free society is that of providing protection from harm when there is no crime yet committed and the legal system is predicated upon the concept of "innocent until proven guilty". Fear of potential harm leads to such things as gun-control laws and anti-terrorism laws. These laws presume actual harm deriving from a potential for harm. That is, deny the multitude a freedom because of the possible actions of a few; restrain a possibly-innocent person because of possible future behavior

Elected representatives can react to/manipulate the fears of the public and try to pass laws about almost anything to "protect" the public. Partisanship leads different groups to cry "ACTIVIST JUDICIARY" whenever laws that they favor are struck down. The most recent iterations of the SCOTUS have joined in the political game, refusing to address issues that migth be too hot button. IMO this is because the tendency of the liberals and conservatives has been towards keeping a "centrist-balanced" court whose decisions are pragmatic rather than principled. Hence no far-reaching decision on the 2A as it is slowly eroded away.

 

[Gray Peterson]

Something has to be done. The only way we can get to the SC is through impeachment, something the senate will not do. The constitution does allow for the legislative branch to tell the judiciary, "Keep you hands off." but it has not been implemented. To do so would create a first class constitutional crisis.

They do not have this power. They don't have the power to say "The courts shall have no jurisdiction over cases of the Ten Commandments" or "The courts have no jurisdiction over flag burning" or whatever pet peeve issue that Roy Moore and his ilk. To allow Congress to use a very twisted interpretation of Article 3 of the constitution would invite absolute chaos because eventually, every law will have a section that says that the subject matter in the law cannot be reviewed by the courts. You think the courts will agree?

 

[DMF]

The constitution does allow for the legislative branch to tell the judiciary, "Keep you hands off." but it has not been implemented.

Other than the Amendment process defined in Article V there is no method of keeping the courts out of any matter. They are bound to rule on matters of law, and they are bound to follow the Constitution in doing so. Again, reference what I posted from Justice Marshal in the Marbury v. Madison decision. There is no method for the legislative branch to say the judiciary can't rule on certain matters of law, that is the purpose of the judicial branch as defined in Article III. That would destroy the checks and balances of the first three articles of the Constitution if Congress had that power.

 

[Benjamin]

What penalties, if any, are applicable to those who judges who reach decisions that annoy the government?

I'm doing some reading on the system over here and trying to reach some understanding, I'd like to grasp how it works 'over there' too. Some opinions would be very welcome too.

Oh, there's a lot that can be done to reign in the Judiciary.

The Constitution says little, save that there will be a supreme court with certain jurisdiction, and that the legislature can flesh out the court system.

Judges can be impeached. There isn't a hard and fast rule for what constitutes an impeachable offense. In Nixon v. US (1993) an impeached federal judge sued to have his impeachment overturned on technicalities. One of the issues that came up was what it takes for an impeachment....basically, it's what the Senate thinks deserves impeachment.

Congress can cut funding to the courts. They can't diminish salaries for sitting judges, but there's no duty to fund the construction of new court buildings; one of the classic examples a JD I used to study under brought up is 'they don't have to pay to air condition the new court.'
Nor is there any duty to appropriate money for the upkeep of the Supreme Court building. Congress could legally stop funding that and tell the justices to meet in the broom closet in the basement of the Capitol building. There's a lot to be said for holding the purse strings of the nation.

When the Court rules that certain governmental actions are illegal, the other branches can just flat out ignore it. Andrew Jackson said something to the effect of "the Court made their decision, now let's see them enforce it." The one big example I'm familliar with was INS v. Chadha, in which the Court declared one house vetoes of executive agency decisions illegal. The Senate and Congress still do those constantly.

Congress has set sentencing guidelines. (Mistretta v. US) Basically, in criminal cases, a judge is now supposed to look at a chart which will give a sentence range, say, 3-5 years. There are certain extenuating circumstances, but one of the big things the DoJ is doing now is to keep tabs on all sentences handed down. As a segue, [edit]Congressman Feeney*** said that anyone giving lesser sentences than those proscribed was grounds for for impeachment.

Congress can suspend the writ of habeas corpus to prevent the courts from hearing certain cases. This is the nuclear bomb of legal retaliations, though.

Someone mentioned fillibustering appointments. There are other fun things that can be done to muck with court composition. During Senate recess, the President can appoint without any confirmation. However, these appointees must later be confirmed or they must step down. Also, as the number of Supreme Court justices is defined by statute, the house and senate can pass a bill stating that there will be "x" justices, and possibly work with the president to pack the court with justices who will be favorable to the current political climate.

If they had a real wild hair, Congress and Senate could simply abolish a federal court which gave decisions they hated.

Since the Courts rule on principles of law, and the House and Senate can pass or rescind laws, they can change the legal framework upon which a decision was based. If it's a constitutional issue, the Constitution can be amended.

So, getting back to the point: legal penalties, as such, are impeachment. There is a great deal which can be done to influence decisions, or to harass for decisions already made.


***Edit. Remembered the name. Feeney and Delay have formed a caucus on judicial accountability. You may wish to look into that a bit.

 

[Waitone]

That would destroy the checks and balances of the first three articles of the Constitution if Congress had that power.

So what do you propose as a way to limit judicial tyranny? Impeachment? Congress has not the intestinal fortitude. Advice and consent of the senate? Broken process now. Simply not replace vacating SC members? Possible.

Checks and balances is a noble concept that over time is breaking down. One such area is judicial override.

 

[Iain]

Time to play anothers hand:

'Liberty' said Adams, 'cannot be preserved without a general knowledge among the people.' And in a letter to Thomas Jefferson, Adams said 'Power must never be trusted without a check.'

Judge Keith's opinion was that it was unlawful for the Bush administration to conduct deportation hearings in secret whenever the government asserted that the people involved might be linked to terrorism...

...The adminstration argued that opening up the hearings would compromise its fight against terrorism. Judge Keith and the two concurring judges in the unanimous ruling took the position that excessive secrecy compromised the very principles of free and open government that the fight against terror was meant to protect...

...Judge Keith was lauded as a hero; we have our equivalent heroes, reminding the government that judicial independence is necessary to curb abuse of power and to protect the rights of those who might be unpopular and marginalised. Asserting their independence may make the judiciary unpopular at times but that is their crucial function in a democracy.

Extract taken from 'Just Law. The changing face of Justice and why it matters to us all.' - Helena Kennedy.

Checks and balances is a noble concept that over time is breaking down. One such area is judicial override.

I strongly disagree. I believe checks and balances are vitally important to our societies, with them we remember with shame our abuses, like internments during the war, without them these could be more regular abuses. The fact that the judiciary can override a law keeps the government in check, if the government can, at whim, remove obstructive judges, then the system is compromised.

 

[7.62FullMetalJacket]

But the problem is still selective checks. The 2nd amendment is being gutted by the courts. It is all fine and well that other civil liberties are watched over, but they also left out the 1st Amendment with Campaign Finance CONTROL.

Selective interpretation.