The recent debacle in the United States Senate over judicial appointments may be a sequel to molding the judiciary to be the mere enforcer of “political decisions.”
The idea the judiciary is restricted merely to that of “an enforcer of political decisions made by elected representatives,” advocated on the Senate floor by U.S. Senator John Cornyn, is so precedentially fallacious it is inconceivable it was sincerely made.
Our greatest chief justice, John Marshall, a contemporary of our founders, served with George Washington in the Revolutionary War, and later as secretary of state, declared in Marbury v. Madison (1803) it is the exclusive function of the court “to say what the law is.”
Marshall’s opinion is unassailable to those embracing original-intent philosophy to confer check-and-balance powers to the three branches of government.
For example, the legislative branch enacts legislation. The executive branch may veto the legislation; the legislature may override the veto; the judicial branch is empowered to review the constitutionality of legislation, but only when a pertinent case is brought to the court; the legislative branch in turn has the check-and-balance power to initiate the amendment process.
It speaks well for Marshall’s interpretation of the Constitution that notwithstanding 27 successful amendments, neither the legislative nor executive branch has proposed an amendment obviating judicial review or any part of separation of powers, nor are they likely to. Likewise, no state has convened a convention to propose an amendment to eliminate that necessity.
House Majority Leader Tom Delay’s quote: “The time will come when judges will answer for their behavior” suggests judges must reflect public opinion or be punished. The contrary is true. To demonstrate the resoluteness of our Founding Fathers to have an independent judiciary, they provided for the election of the executive and legislative branches of government but appointment for life of federal judges. Their purpose was to assure public opinion, when misguided, would not compromise intellectual honesty.
Instead, these dedicated men and women have an unswerving duty, to quote Abraham Lincoln, “To do the right as God gives us to see the right.” They must perform their function with intellectual detachment in the face of impeachment threats, which happened with Chief Justice Earl Warren following the desegregation decision of Brown v. Board of Education (1954) or even threat of life.
Judges are defenseless to answer charges and protests. Even when rulings arouse angry emotions, judges do not deserve threats, especially by august leaders to “answer for their behavior” or intimidated to be “an enforcer of political decisions,” or life threatened as did one malevolent who offered a reward to anyone who kills a St. Petersburg judge ruling in the Schiavo case.
Indeed, the judiciary has and will displease many for whatever reason, but to reduce that equal branch of government to serve as a minion to the executive and legislative branches of government, not only does violence to constitutional sanctity but violence to the founders’ original philosophy that an independent judiciary is indispensable to a democratically free society.
By Russell Troutman
The Orlando Sentinel
Thursday May 26, 2005