In two previous articles (1) I argued that government has become dysfunctional, citing the curious tone-deafness exhibited by the president and Congress toward the voting public on immigration and energy. Readers will judge if I have made my case, but I stand by my assessment that something is seriously wrong when a president and a large segment of Congress take positions diametrically opposed to the voting public's views and desires.
This third article in the series examines dysfunction in the court system - not in some eccentric local backwaters, but in our highest federal courts. Commentators sometimes say the judicial system is "broken" when they believe a particular court case has been wrongly decided. This is usually just their opinion on how things ought to be. My approach differs because I apply more than my own opinion to several cases. In this discussion I shall apply the classical measures of legislative intent, Judeo-Christian morality, jurisprudential precedent and Constitutional harmony.
Legislative intent bears mention because we're so accustomed to courts making "law" that what the legislature intended seems incidental. Legislation is the expression of the people's will - as directly as is possible in a republic. The Constitution permits wide latitude for this. A few judges should not be able to thwart that will because they disagree with a law, or because that law expresses some "animus" they dislike. The whole spirit of the Constitution - obvious to all but the most obtuse - is that the people get the nod. Within the Constitution's boundaries, our will is (supposed to be) paramount because we are a self-ruled people.
Judeo-Christian morality is much jeered at today, but scoffers only show their ignorance. History is replete with nations ruined by going off the Biblical rails. Biblical law informs our whole system. What says the Bible about law and government? That the law's purpose is justice, applied equally to all. That government is about: respect for human life; respect for property and "ownership"; respect for parents, children and neighbors; respect for faith; holding individuals accountable for their actions; protection of the weak; appropriate punishment for the guilty; mercy for the penitent. (Not an exhaustive list.) "Why should the words in some old book inform our laws?" a former colleague once asked me. My answer was: "which of those principles of Biblical morality would you like to see discarded?"
Jurisprudential precedent has gained a permanence approaching holy writ - except, ah, when the Supreme Court decides that a precedent should be overturned. How this conundrum applies at any given time depends on the issue and the Court's composition. The "rules" are simple and contradictory. Call them the Doctrine of Precedent: (1) A liberal court's precedents must never be touched; (2) any decision of a conservative court can be overturned; (3) abortion on demand is an untouchable "super precedent". One need look no farther than these bizarre, extra-Constitutional "rules" - obviously constructed by liberal partisans - to understand where we went wrong.
Constitutionality of laws is a given. But only the Constitution is the Constitution. A prospective amendment must be passed by two-thirds of each house of Congress and ratified by at least three-fourths (38) of the states. The text of a Supreme Court ruling (or any portion thereof) does not become part of the Constitution. "Abortion rights" - not mentioned in the Constitution - are now regarded as part of the document without actually being in it. The Court has executed this feat of legerdemain in full view of the American people, with the complicity of lawyers who knew better. It is one of the most remarkable political acts in history.
Some recent court decisions merit examination because they show what turmoil results when any of these important principles is ignored. The Lewis Libby perjury case is current news. Mr. Libby - Vice President Cheney's former chief of staff - was sentenced to 30 months' in prison for "lying" to a grand jury. Some political enemies of the Bush administration seem satisfied with Mr. Libby's punishment, but others - who actually oppose both Mr. Libby and Mr. Cheney, politically - are appalled at the verdict and harsh sentence. Legal scholars have decried it.
The case violates two key Judeo-Christian principles: i.e., justice and appropriate punishment. The justice (or injustice) aspect is especially problematic. Prosecutor Patrick Fitzgerald set out to investigate a "crime" that he knew, from Day One, had not been committed. Valerie Plame was not a "covert agent", as defined by applicable statutes. Thus, her status was not protected, and whoever disclosed it was not a criminal. Mr. Fitzgerald's "investigation" was a sham used to catch Mr. Libby in "lies" about issues of no legal importance - the equivalent of "did you eat a ham sandwich on such-and-such a date?" Those who say this was a pursuit of "justice" have lost all understanding of the concept. If Mr. Fitzgerald is not brought up on ethics charges for his conduct, the term "prosecutorial abuse" will have become meaningless.
By contrast, the case of Sandy Berger, former national security advisor to President Clinton, is remarkable in an opposite sense. Working inside the National Archives, where officials left him unsupervised, Mr. Berger secreted numerous classified documents in his clothing. He hid them in a nearby construction site and ultimately destroyed an undetermined quantity of them. These acts would surely have resulted in imprisonment and permanent denial of a security clearance for any ordinary person. But Mr. Berger - whose motivation for destroying selected copies of national security documents from the Clinton administration was almost certainly political - was sentenced to 100 hours of community service and required to pay a $50,000 fine.
This curious case - for which no satisfactory explanation has been given - got little media coverage, except a certain amount of chortling over the documents-in-the-pants shtick. Media curiosity over which documents Mr. Berger stole - and why he stole them - has been AWOL. We have only Mr. Berger's word that he "cut up" some copies. That aside, his sentence for an act of espionage was extremely lenient. Why did Mr. Libby get 30 months in jail for "lying" about a non-crime (if indeed he did), while Mr. Berger got slapped on the wrist for a real crime? Was this "equal justice" and "appropriate punishment"? Both cases stink to high heaven.
On April 19, 2007, the Supreme Court finally ruled on the Partial Birth Abortion prohibition passed in 2003 by Congress. In a 5-4 decision, the Court let the law stand. This was the first time a law restricting abortion-on-demand was allowed to stand without an exception to protect the mother's health. Such provisions in the past had essentially negated all abortion restrictions, since "health" could always be interpreted as mental health - thereby allowing any woman upset over her pregnancy to plead that she needed an abortion to preserve her health. The 2003 law lacks that provision - although it does include an exception to protect the mother's life. The Court found no difficulty, however, since other abortion procedures remained available.
Critics who call the PBA procedure "nazi-esque" are right. It is something straight out of Dachau. A viable, fully formed child is delivered, all but the head. (The reverse of a normal delivery.) The abortionist then pierces the base of the child's skull and vacuums out its brains, killing it instantly. The deflated head easily passes through the birth canal, completing the grotesque procedure. It is impossible to deny that a living child - literally inches from life - has been destroyed. Yet hard-line abortion solidaristas continue to denounce the new restrictions. The 2003 law passed the House of Representatives by a vote of 281-142 and the Senate by 64-34.
Thus, the Supreme Court has upheld prohibition of a barbaric abortion procedure. This is a good thing. Why do I call the decision "dysfunctional"? Because of the margin of the Court's vote. Five to four! ("A damned close-run thing", as the Duke of Wellington once said on another matter.) 44% of our highest judges thought killing a child in this way was OK! With House and Senate majorities of nearly two-thirds enacting the law - and even larger percentages of public approval extant - why would the Supreme Court come within one vote of permitting a procedure Heinrich Himmler would have been comfortable with?
At least part of the answer goes to "tenure". Federal judges - appointed for life - can be removed only by Congressional conviction for "malfeasance". This has been done, but it is rare - only when an actual crime is involved, like bribery. Otherwise, a judge can sit for a very long time. The nine sitting Supreme Court justices have served 32, 21, 19, 17, 16, 14, 13, 2 and 1 years. Six are age 68 or older. Justice Stevens, now 87, was confirmed in 1975. If he reaches age 100 (only 13 years hence), he will have served 45 years. Even his current service of 32 years means he brings social views to the Court that are nearly two generations old. This helps explain why the Court has stubbornly retained a 1960s-liberal flavor while the country has moved steadily conservative. The Supremes are a "blast from the past".
I am not the first to suggest that lifetime judicial tenure is inappropriate in a time when more and more people are living to great age. Faced with a Court that kept knocking down his New Deal programs, Franklin Roosevelt threatened to add one new justice for each sitting justice over age 70 who refused to retire. (The 1937 Court contained six 70+ justices.) Congress wouldn't buy the radical "packing" scheme, but FDR essentially spooked the justices into retirement. He appointed eight Supreme Court justices between 1937 and 1945 - more than any other president.
I can see advantages in mandatory retirement at a specific age (e.g., 70) or in a non-renewable term of fixed length - perhaps 15 years. A Constitutional amendment would be required, of course. This would be difficult, since liberals tend to think of superannuated judges as allies in their great, rearguard struggle to preserve liberalism. But as the number of younger conservative justices on the Supreme Court grows, liberals might see wisdom in joining a bipartisan effort to limit tenure. This won't go the whole way to healing dysfunction in the courts, but it will certainly help.
Beyond this, a fundamental overhaul of national judicial attitude and practice is needed. This has to start with appointment of judges who understand (and accept) the principles of legislative intent, Judeo-Christian morality, jurisprudential precedent, and Constitutionality. Courts are guardians of the nation's laws and protectors of the people. They are not our unaccountable masters. Every now and then they have to be reminded of that. This is such a time.
(1) "Dysfunctional Government", 5/28/07 - http://www.ahherald.com/content/view/1885/27/
(2) "Dysfunctional Government (II): Inmates in Charge", 6/3/07 - http://www.ahherald.com/content/view/1938/27/