Posted on 05/24/2005 4:41:51 PM PDT by CHARLITE
The battles in Congress over the appointment of even lower court federal judges reveal a recognition that federal judges are now, to a large extent, our real lawmakers. Proposals to amend the Constitution to remove lifetime tenure for Supreme Court justices, or to require that rulings of unconstitutionality be by more than a majority (5-4) vote, do not address the source of the problem. The Constitution is very difficult to amend--probably the most difficult of any supposedly democratic government. If opponents of rule by judges secure the political power to obtain an amendment, it should be one that addresses the problem at its source, which is that contemporary constitutional law has very little to do with the Constitution.
Thomas Jefferson warned that judges, always eager to expand their own jurisdiction, would "twist and shape" the Constitution "as an artist shapes a ball of wax." This is exactly what has happened.
The Constitution is a very short document, easily printed on a dozen pages. The Framers wisely meant to preclude very few policy choices that legislators, at least as committed to American principles of government as judges, would have occasion to make.
The essential irrelevance of the Constitution to contemporary constitutional law should be clear enough from the fact that the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law; and nearly all of them purport to be based on a single constitutional provision, the 14th Amendment--in fact, on only four words in one sentence of the Amendment, "due process" and "equal protection." The 14th Amendment has to a large extent become a second constitution, replacing the original.
(Excerpt) Read more at opinionjournal.com ...
Anything short of total dissolution of the federal judiciary is unsatisfactory.
Rush was saying the same thing on his show this afternoon.
Laura Ingram read this today. Awesome. Too bad I don't have a logon for Opinion Journal.
Sure. We don't need to adjudicate cases arising under federal law, cases involving citizens of different states, bankruptcies, or admiralty cases anyway. And it's ridiculous that private citizens should be able to sue the federal government.
You can get logins to almost any site at all at bugmenot.com. The login for opinionjournal.com is nospam@nospam.com.
I hope this helps.
Obviously you need a court system, but you don't need the one we have. It's an institutional problem ~ not just a problem with a handful of rogue judges.
It's time for a wholesale replacement.
This is how the Turks kept the Sultan distracted while qualified people ran the country.
Except for that whole pesky lifetime tenure Constitutional thingy.
Lifetime tenure applies to the Justices of the Supreme Court (if that's what we want ~ a judicial civil service law would remove all the lower court judges from Presidential appointment).
Lifetime tenure applies to all Article III judges.
"The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." - United States Constitution, Art. III §1
You know, none of this involves any new ideas. They were all addressed when we got rid of patronage as a general practice at the federal level.
Professor Graglia is a brilliant man, with an excellent grasp of constitutional law, as well as many other subjects. I studied antitrust law and constitutional law under him in law school, and let me tell you: he has a mind like a steel trap.
Federal judges can only be fired by impeachment and removal. You can't draft a statute which compels the House to impeach and the Senate to remove from office, even by defining "lack of good behavior" as failure to comply with civil service regulations and stating that such failure of compliance is adequate grounds for impeachment.
The Constitution itself says: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. "
With Judges we get "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..".
Then, there's the big one concerning what the President may do: "Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. "
This is where the Supreme Court justices are clearly differentiated from all the other judges. Civil Service law rests on this clause. I cannot note too strongly that when the President is given authority to appoint all alone, he is also given the authority to remove without further consultation beyond what the Civil Service law itself provides. It's also pretty clear that judges are not considered "civil officers" in all the clauses.
Now, are you satisfied that we can remove all the judges except for the Supreme Court (since the judges in the lower courts are not named as those who can be impeached), and replace them with a Civil Service type corp of judges?
It's simply not required that we impeach a judge to get rid of that judge.
The reason why only Supreme Court justices are mentioned in the Constitution is that it does not expressly provide for any other courts; it merely states that Congress may create inferior federal courts if it wishes. Obviously, Congress chose to do so.
Thomas Jefferson simply fired half the federal judiciary.
That is ridiculous. Please cite something approximating a source.
I cannot note too strongly that when the President is given authority to appoint all alone, he is also given the authority to remove without further consultation beyond what the Civil Service law itself provides.
The President is clearly granted the authority to nominate lower federal judges by Article II. And those lower federal judges have their tenure specially protected by Article III, §1, just like Supreme Court justices.
It's simply not required that we impeach a judge to get rid of that judge.
You may perhaps be confused about the difference between an Article I and an Article III judge. Alternately, you may simply be engaging in wishful thinking. Lower federal judges have been subject to removal only by impeachment at least since the impeachment proceeding of John Pickering in 1804.
http://www.historywise.com/KoTrain/Courses/TJ/TJ_Domestic_Affairs.htm
The conclusion is Jefferson simply canned the judges involved once the process under which they'd received office was eliminated.
For all intents and purposes, the special procedure was a Civil Service law. A Founder (Adams) undoubtedly thought you could pass a law to provide a special procedure for appointing judges to the judiciary, and another Founder (Jefferson) thought all you had to do was abolish that law to get rid of those judges.
No doubt my view of this will be viewed as being too simple, but Adams stayed up all night signing the warrants, and Jefferson fired all the Federalists who got appointments under that law.
A one-size-fits-all mass impeachment for all current federal judges would not be out of order, and shouldn't take more than 15 minutes time in Congress.
No, the conclusion is that Jefferson had no power to fire federal judges, because, as the article states: "Jefferson was powerless at first to dismiss the federal judges because they were appointed for life".
Instead, Congress repealed the Judiciary Act of 1801 and dismantled the new circuit courts. The circuit judges were "canned" by Congress when their seats were abolished. There was dispute at the time about whether lifetime tenure prohibited Congress from abolishing federal judicial seats, but it was eventually accepted that as Congress had the power to create inferior courts, it must therefore have the power to abolish them. There is no dispute, however, about whether the President has some arbitrary power to fire federal judges, or about whether Congress can create a mechanism to fire federal judges without impeachment (or abolishing their court outright).
A one-size-fits-all mass impeachment for all current federal judges would not be out of order, and shouldn't take more than 15 minutes time in Congress.
It is undisputed that Congress could impeach all the federal judges. It also has the constitutional power to set its own procedures for impeachment, and so a gigantic "kangaroo trial" of the judiciary could be swiftly held. The United States Supreme Court has repeatedly held that it would not interfere in an impeachment, even one occurring under such a bizarre procedure, under the political question doctrine.
Now, back to the issue ~ all these judges we want to get rid of hold office in courts established pursuant to law.
Congress can repeal laws.
Time for Congress to start doing that. Then the judges can simply be turned loose to return to their homes.
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