Multi Party Politics in an American Presidential Republic: Part Six: Independent Officers and the Judiciary
In any kind of free society, some people must be independent of others. For thousands of years, humanity has had judges. Many were kings, or some other official appointed by the king, like the satraps of the Achaemenid Empire. A person who believes or is familiar with Abrahamic faiths probably knows of King Solomon, famed for wisdom and creative child custody case solutions.
The Roman Republic is best known for the consuls and the Senate, sometimes some dictators and generals, before the imperial period, but one thing they considered a sacred liberty of theirs was to be judged by an elected praetor, not a king, and this praetor also was assisted in the determination of the guilt by a jury. The Athenian democracy is known for the direct participation in the assembly by the people, sometimes people know of the Boule, but trials, both civil and criminal, were heard by juries and presided over by magistrates randomly chosen from among the citizens for a one year term. Both systems use juries which still survives in American imagination today although not that many cases are actually heard by them.
The American legal system grew out of the English and later British systems, which had juries as part of the Anglo Saxon law, protected by the Magna Carta Libertatum in that the peers of the accused were to give judgement, and such Magna Carta also demanded that no legal official of the king was to be appointed except if they were legally competent and intended to uphold those laws.
Later changes increased the independence of the judiciary, such as providing for how in American federal constitutional law, judges must have tenure on good behaviour, be assigned to a court which is created and amended or repealed only by laws as a consequence of how the Congress decides what lower court structures are, and judges have a salary that cannot be reduced and is fixed by statute and never by executive action. Some states and countries around the world have retirement ages too but provided that pensions are good and judges are not normally hired to do anything else in their retirement except being perhaps university professors at schools of law, they remain independent.
But one thing that keeps Americans either disinterested or vividly glued to their screens and probably either yelling at the guy who nominated a judge or the guys who oppose that nomination is that a judge is appointed by a president, and it only takes a simple majority to confirm the judge by the Senate.
In the past judges commonly got unanimous or near unanimous votes. Of the judges, only a few before the modern era of politics, which I'll state to be when George Bush Jr was inaugurated, were approved with low margins or rejected. Even Roger Taney, the guy who wrote the Dredd Scott case, had almost a 2/3 vote in favour (29-15), and that was low. 68 of the 114 people made judges on the SCOTUS were acclaimed, ergo with no opposition. 6 more had 100% of the senators present and voting voting in favour. 25 more judges had 75% of the senators voting or more support, and by the way, that includes both Ruth Bader Ginsburg (96-3) and John Roberts (78-22). The late Antonin Scalia got 98-0. It is also true that 5-4 cases happen, but you normally miss the cases that get 9-0 or 8-1, which are far more common.
Now judges are getting far more partisan, at least the appointments that is, and that is not just with the nuclear option being deployed. Elena Kagan got 63-37, which is a low figure. Clarence Thomas got in by two votes, 52-48. Alito got 58-48, below the filibuster threshold.
Having 9 judges is also not an inherent property of the Supreme Court. South Africa has 11 judges, as does Brazil, the UK has 12 judges. The United States used to have 10 judges. Germany has 16 judges on their constitutional court, Italy has 15 judges. Netherlands has 36 judges, although they don't have the power of judicial review and hear cases in panels which makes it hard to predict which judge will be on a given case in contrast with America. A bigger court, such as a 17 member court, would need an 8-7 decision to be an almost tied decision and likely a partisan one, and the same fraction of 5/9 in a 17 member court would be, rounded correctly, be a 9-7 decision, meaning you need to influence an additional judge to be as partisan as a 5-4 split.
The judiciary in America also has the important property that all courts have the power to invalidate a law based on the premise that it's unconstitutional, and same with cancelling any other political action by the way be it executive order or a state law. That's not the case with many countries, especially those with civil law, although it's not exclusive to such systems. A separation in that power to only a specific court deliberately designed to be hearing cases like that and other important questions such as whether the president has committed a crime could leave the other judges unblemished by this question and be less partisan.
These days, judges are commonly called Obama judges, Trump judges, Bush judges, Clinton judges, and so on. Even the mere appearance of conflict, of any kind, sort, or nature, to any degree, impedes people's trust, and it's essential that this be eliminated for people to perceive their judges as fair and not out to get them.
These flaws is not an inherent property of judiciaries, nor should it. The idea that a judge is impartial is of imperative importance, the raison d'etre, of a republican democracy and of any other system that claims to be a free society as America likes to boast. There are other ways of choosing judges. Most states already have something of this nature, where a commission, usually serving 6 year terms with 1/3 chosen every two years, gets one person named by the governor every 2 years, one person chosen by the bar association every two years in their state, and the chief justice elected by the other judges of the supreme court make a choice, and these commissioners create a list of judges for the governor to pick from, the state senate may confirm them depending on the state such as Montana and Utah, and in most cases although it's not inherent, the people of the state vote yes or no on the judge at the next election and again after a given fixed term, usually 6-12 years, and almost all judges in retention elections get a massive majority in favour, over 2/3 and many over 75%. Japan also oddly enough uses the same system for their supreme court for ten year terms and basically always get about 90% or more in support.
The Kenyan and South African Courts, needing a political system to move on from what had been horrific judicial systems in the past which were riddled with loyalty to an executive, corruption, and support for authoritarian, and were not transparent systems, adopted a judicial council model which is linked with the model American states use but has more actors in the system, usually members from the legislature including mandatorily members from the opposition, added judges from lower courts and courts of the constituent units be they counties or provinces or states, and is designed more so on open interviews and applications so that anyone qualified to be a judge can apply and have a good shot. Kenya is a presidential republic, just as America is, and while not federal, is much more decentralized than most in the continent, and so you may want to get inspiration for when you have a polarized country and a judiciary in need of repairs.
The South African judiciary is particularly independent and resists the power of the president, striking down Jacob Zuma many times, even though the party has a majority in both houses of parliament and majorities in most provinces and municipalities and has for most of the last 25 years in most places, sometimes even supermajorities sufficient to unilaterally amend the constitution. Very few countries emerging from an authoritarian state dominated by racism even worse than what the American South had, towards a system regularly producing majorities like that, can say their courts would be as willing to strike things down this way. Imagine what a system with many different parties that normally depend on a multi party majority and where the regional governments commonly have different majorities from the central government would do with that council.
Even a basic rule like needing a 2/3 vote to confirm a judge, possibly in both houses, and also making it a privileged motion to avoid any stalling and make the confirmation dependent on the active support or rejection by the mass of senators and not one lightning rod or one opponent of a senator to stand up for good judgeships, would be helpful, at least to mandate that there is multi platform support for a judge. In a multi party system, a president liable to be impeached relatively easily without a single party loyal to the president that would be able to unilaterally stop the impeachment and trial, and judges also knowing that their impeachment by a strong majority can also end them or reorganize the judiciary if they are too partisan, and vitally, constitutional amendments which cannot be stopped by a party that benefits from current biases for their elite class status quo being passed on a regular basis that allows for the society to change without wanting judges to rule your way to create new precedent, such as on abortion or guns or what have you, these make the judiciary's role as the agent of policy and protecting your mafia and thus vital to control much less important.
Much of this is also true of many important independent officers such as inspectors general (this is in fact how you pluralize this noun), US attorneys (like the district attorney), the Comptroller General of the Government Accounting Office, and independent officers which cannot be controlled by one party such as the Federal Elections Commission. An independent body to choose them, far more than one party meant to support them during confirmation by a multi party supermajority, open applications, and where the real policy changes people want is based on the laws and constitutional amendments people want and are debated in public by legislatures and popular referendums or conventions as political questions, makes these positions the arbiters of democracy and a free society, to bring about a fair hearing and trial to everyone, and to assure equal justice, not the tools of any one person.
Judges don't always have to be professionals or legally trained to have a free justice system. The English Magistrates do well in panels of three, advised by a clerk who is legally trained, who oversees arguments put forward by a crown prosecutor and a well paid and well trained defense attorney (how's the public defender funding working for you guys?), when they are appointed by community panels, for many lower crimes and common offenses. They hear a massive fraction, about 90%, of the criminal cases and most aspects of family law before them. German judges have lay judges, also chosen in a similar manner, and while Germany has not had any juries since 1923, they have lay judges who are relatively similar to the general population, are chosen by local panels of local councillors and lawyers in a multi party municipal council or Kreisraete, aren't legally trained but are assisted by professional judges who are so trained and sit in panels. The influence of one judge, especially given that a massive fraction of trials in America are not before a jury, they are before judges hearing boring summary judgements and plea agreements or other procedural issues, is much mitigated in such systems.
End the yammering about an Obama judge and Trump judges, and have yourselves judges responsible to no person, only to the ways which bind even the most powerful among us.
The Roman Republic is best known for the consuls and the Senate, sometimes some dictators and generals, before the imperial period, but one thing they considered a sacred liberty of theirs was to be judged by an elected praetor, not a king, and this praetor also was assisted in the determination of the guilt by a jury. The Athenian democracy is known for the direct participation in the assembly by the people, sometimes people know of the Boule, but trials, both civil and criminal, were heard by juries and presided over by magistrates randomly chosen from among the citizens for a one year term. Both systems use juries which still survives in American imagination today although not that many cases are actually heard by them.
The American legal system grew out of the English and later British systems, which had juries as part of the Anglo Saxon law, protected by the Magna Carta Libertatum in that the peers of the accused were to give judgement, and such Magna Carta also demanded that no legal official of the king was to be appointed except if they were legally competent and intended to uphold those laws.
Later changes increased the independence of the judiciary, such as providing for how in American federal constitutional law, judges must have tenure on good behaviour, be assigned to a court which is created and amended or repealed only by laws as a consequence of how the Congress decides what lower court structures are, and judges have a salary that cannot be reduced and is fixed by statute and never by executive action. Some states and countries around the world have retirement ages too but provided that pensions are good and judges are not normally hired to do anything else in their retirement except being perhaps university professors at schools of law, they remain independent.
But one thing that keeps Americans either disinterested or vividly glued to their screens and probably either yelling at the guy who nominated a judge or the guys who oppose that nomination is that a judge is appointed by a president, and it only takes a simple majority to confirm the judge by the Senate.
In the past judges commonly got unanimous or near unanimous votes. Of the judges, only a few before the modern era of politics, which I'll state to be when George Bush Jr was inaugurated, were approved with low margins or rejected. Even Roger Taney, the guy who wrote the Dredd Scott case, had almost a 2/3 vote in favour (29-15), and that was low. 68 of the 114 people made judges on the SCOTUS were acclaimed, ergo with no opposition. 6 more had 100% of the senators present and voting voting in favour. 25 more judges had 75% of the senators voting or more support, and by the way, that includes both Ruth Bader Ginsburg (96-3) and John Roberts (78-22). The late Antonin Scalia got 98-0. It is also true that 5-4 cases happen, but you normally miss the cases that get 9-0 or 8-1, which are far more common.
Now judges are getting far more partisan, at least the appointments that is, and that is not just with the nuclear option being deployed. Elena Kagan got 63-37, which is a low figure. Clarence Thomas got in by two votes, 52-48. Alito got 58-48, below the filibuster threshold.
Having 9 judges is also not an inherent property of the Supreme Court. South Africa has 11 judges, as does Brazil, the UK has 12 judges. The United States used to have 10 judges. Germany has 16 judges on their constitutional court, Italy has 15 judges. Netherlands has 36 judges, although they don't have the power of judicial review and hear cases in panels which makes it hard to predict which judge will be on a given case in contrast with America. A bigger court, such as a 17 member court, would need an 8-7 decision to be an almost tied decision and likely a partisan one, and the same fraction of 5/9 in a 17 member court would be, rounded correctly, be a 9-7 decision, meaning you need to influence an additional judge to be as partisan as a 5-4 split.
The judiciary in America also has the important property that all courts have the power to invalidate a law based on the premise that it's unconstitutional, and same with cancelling any other political action by the way be it executive order or a state law. That's not the case with many countries, especially those with civil law, although it's not exclusive to such systems. A separation in that power to only a specific court deliberately designed to be hearing cases like that and other important questions such as whether the president has committed a crime could leave the other judges unblemished by this question and be less partisan.
These days, judges are commonly called Obama judges, Trump judges, Bush judges, Clinton judges, and so on. Even the mere appearance of conflict, of any kind, sort, or nature, to any degree, impedes people's trust, and it's essential that this be eliminated for people to perceive their judges as fair and not out to get them.
These flaws is not an inherent property of judiciaries, nor should it. The idea that a judge is impartial is of imperative importance, the raison d'etre, of a republican democracy and of any other system that claims to be a free society as America likes to boast. There are other ways of choosing judges. Most states already have something of this nature, where a commission, usually serving 6 year terms with 1/3 chosen every two years, gets one person named by the governor every 2 years, one person chosen by the bar association every two years in their state, and the chief justice elected by the other judges of the supreme court make a choice, and these commissioners create a list of judges for the governor to pick from, the state senate may confirm them depending on the state such as Montana and Utah, and in most cases although it's not inherent, the people of the state vote yes or no on the judge at the next election and again after a given fixed term, usually 6-12 years, and almost all judges in retention elections get a massive majority in favour, over 2/3 and many over 75%. Japan also oddly enough uses the same system for their supreme court for ten year terms and basically always get about 90% or more in support.
The Kenyan and South African Courts, needing a political system to move on from what had been horrific judicial systems in the past which were riddled with loyalty to an executive, corruption, and support for authoritarian, and were not transparent systems, adopted a judicial council model which is linked with the model American states use but has more actors in the system, usually members from the legislature including mandatorily members from the opposition, added judges from lower courts and courts of the constituent units be they counties or provinces or states, and is designed more so on open interviews and applications so that anyone qualified to be a judge can apply and have a good shot. Kenya is a presidential republic, just as America is, and while not federal, is much more decentralized than most in the continent, and so you may want to get inspiration for when you have a polarized country and a judiciary in need of repairs.
The South African judiciary is particularly independent and resists the power of the president, striking down Jacob Zuma many times, even though the party has a majority in both houses of parliament and majorities in most provinces and municipalities and has for most of the last 25 years in most places, sometimes even supermajorities sufficient to unilaterally amend the constitution. Very few countries emerging from an authoritarian state dominated by racism even worse than what the American South had, towards a system regularly producing majorities like that, can say their courts would be as willing to strike things down this way. Imagine what a system with many different parties that normally depend on a multi party majority and where the regional governments commonly have different majorities from the central government would do with that council.
Even a basic rule like needing a 2/3 vote to confirm a judge, possibly in both houses, and also making it a privileged motion to avoid any stalling and make the confirmation dependent on the active support or rejection by the mass of senators and not one lightning rod or one opponent of a senator to stand up for good judgeships, would be helpful, at least to mandate that there is multi platform support for a judge. In a multi party system, a president liable to be impeached relatively easily without a single party loyal to the president that would be able to unilaterally stop the impeachment and trial, and judges also knowing that their impeachment by a strong majority can also end them or reorganize the judiciary if they are too partisan, and vitally, constitutional amendments which cannot be stopped by a party that benefits from current biases for their elite class status quo being passed on a regular basis that allows for the society to change without wanting judges to rule your way to create new precedent, such as on abortion or guns or what have you, these make the judiciary's role as the agent of policy and protecting your mafia and thus vital to control much less important.
Much of this is also true of many important independent officers such as inspectors general (this is in fact how you pluralize this noun), US attorneys (like the district attorney), the Comptroller General of the Government Accounting Office, and independent officers which cannot be controlled by one party such as the Federal Elections Commission. An independent body to choose them, far more than one party meant to support them during confirmation by a multi party supermajority, open applications, and where the real policy changes people want is based on the laws and constitutional amendments people want and are debated in public by legislatures and popular referendums or conventions as political questions, makes these positions the arbiters of democracy and a free society, to bring about a fair hearing and trial to everyone, and to assure equal justice, not the tools of any one person.
Judges don't always have to be professionals or legally trained to have a free justice system. The English Magistrates do well in panels of three, advised by a clerk who is legally trained, who oversees arguments put forward by a crown prosecutor and a well paid and well trained defense attorney (how's the public defender funding working for you guys?), when they are appointed by community panels, for many lower crimes and common offenses. They hear a massive fraction, about 90%, of the criminal cases and most aspects of family law before them. German judges have lay judges, also chosen in a similar manner, and while Germany has not had any juries since 1923, they have lay judges who are relatively similar to the general population, are chosen by local panels of local councillors and lawyers in a multi party municipal council or Kreisraete, aren't legally trained but are assisted by professional judges who are so trained and sit in panels. The influence of one judge, especially given that a massive fraction of trials in America are not before a jury, they are before judges hearing boring summary judgements and plea agreements or other procedural issues, is much mitigated in such systems.
End the yammering about an Obama judge and Trump judges, and have yourselves judges responsible to no person, only to the ways which bind even the most powerful among us.
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