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Independent judiciary is being challenged

By Staff | Oct 15, 2020

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…”

“… If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

–Alexander Hamilton, The Federalist Papers, No. 78

Senate confirmation hearings for Supreme Court nominee Amy Coney Barrett wrangled their way through Thursday with Senate Judiciary Committee members arguing procedure and hearing outside testimony as to her qualifications to serve on the high court.

Judge Barrett, President Donald Trump’s third potential appointee to the Supreme Court, was named for Senate confirmation on Sept. 29 to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, a President Bill Clinton nominee confirmed almost unanimously with a vote of 96-3 in 1993.

President Trump’s previous nominees, Brett Kavanaugh, to replace Justice Anthony M. Kennedy, and Neil M. Gorsuch, to replace Justice Antonin Scalia, each were confirmed by the Senate, Justice Kavanaugh on Oct. 6, 2018, and Justice Gorsuch on April 7, 2017.

Despite the outcry of Democrats, despite the approaching presidential election, Judge Barrett, who serves on the U.S. Court of Appeals for the 7th Circuit, is expected to be confirmed as well.

And that is how it should be for two primary reasons: One, she is an eminently qualified candidate as her curriculum vitae attests and her demeanor through the proceedings thus far aptly demonstrates.

Two, Senate failures to confirm have historically been sparse and there is simply no quantifiable reason for Judge Barrett to be the first since October of 1987 when the Senate rejected Robert H. Bork, nominated by President Ronald Reagan to fill the seat of Justice Lewis F. Powell, Jr.

According to the U.S. Senate website, of the 164 nominees submitted for confirmation since the Supreme Court was established 1789, 126 have been confirmed, with seven of those subsequently declining the appointment, the last in 1882.

The Senate took no action on 10, the last being Merrick B. Garland, who President Barack Obama nominated in March of 2016 to fill Justice Scalia’s seat.

A dozen through the years withdrew their names.

And 12 — only 12 –have been rejected. Ever.

Ah, the Founders who envisioned and then brought forth a system based on a balance of powers spread among three branches of government with the Supreme Court intended to address constitutional encroachment by either of the other two.

An independent judiciary for, as Hamilton quotes, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

We, as a county, across party lines and across political idealogy, used to embrace this bedrock of uniquely American philosophy.

Senate confirmations could actually be unanimous, or pretty close despite party divide in the Senate.

But we have drifted far from the visionary shore of upon which the Founders built an independent judiciary.

No longer is confirmation a process of vetting qualifications and mettle.

It’s now a probe centered around the nominee’s “ideology,” “temperament” and even religion of choice. Of course, muck, if any, that can be dredged from their past has become fruitful fodder for angry dissent.

Birth control, climate change and even queries as to whether the coronavirus is contagious — perceived legislative issues — are center stage because what it all comes down to now is whether the nominee is of like mind, is akin to the views of the “other” party, or — horrors — actually is independent enough to place the rule of law first, foremost and above the politics in which it is rapidly being mired.

Judge Barrett summed up her views on political involvement and the courts succinctly this week at the end of a lengthy first day of questioning before the Senate Judiciary Committee.

“I have no mission and no agenda,” she said. “Judges don’t have campaign promises.”

Were that our senators had as clear an understanding of how the process, and our system of government, is intended to work.

A confirmation vote before the Senate Judiciary Committee has been set for Oct. 22 with a Senate vote to follow as early as Oct. 23. We look forward to Judge Barrett’s confirmation and her service on our county’s highest court.

–Breeze editorial