Tag Archives: Founding Fathers

Three cheers for appointed federal judges

supreme court

Take a good look at this picture. It shows the nine men and women who have upheld the Affordable Care Act’s federal subsidy provision.

The U.S. Supreme Court has protected health insurance for an estimated 6.5 million Americans.

But to hear the criticism from the right in this country, you would think these individuals have just destroyed the U.S. Constitution they took an oath to uphold and to interpret fairly and without bias.

Thank goodness for the constitutional provision that allows these individuals to hold lifetime jobs, free of the kind of political pressure that forces elected judges at times to tilt in favor of interests whose job is to put heat on politicians.

The 6-3 ruling crossed ideological lines. Two conservatives — Chief Justice John Roberts and Associated Justice Anthony Kennedy — ruled with the majority. The three dissenters — Justices Clarence Thomas, Antonin Scalia and Samuel Alito — held firm in their belief that the ACA violates the Constitution.

Six justices voted for the ACA; three of them voted against it.

Majority rule wins, yes?

Republican presidential candidates went ballistic. Mike Huckabee called the court majority “judicial tyrants.” Ted Cruz threw the “lawless” adjective out there — again.

The founders got it right when they made the federal judiciary an unelected branch of government. They intended for federal judges to be free of the pressure that can overwhelm elected politicians. Presidents feel it. Legislators feel it. They are elected to represent us all. We might not like all the decisions they make, but we have recourse: we can vote them out when the next election rolls around.

Not so with federal judges. They are appointed to lifetime jobs. Yes, they are appointed by politicians with particular biases and philosophies. The judges then are subjected to sometimes grueling hearings before the Senate, which has the authority to approve or reject their appointments.

Once they take their seat on the bench, though, all bets are off.

Occasionally, these appointees evolve into judges that their benefactors — the presidents who appoint them — might not like.

That’s part of the process the founders established.

And the irony of all the outrage being expressed by those who oppose the Supremes’ support of the ACA is that many of those on the right proclaim themselves to be “strict constructionists” of the Constitution. The way I read the Constitution, it states with crystal clarity that federal judges serve for as long as they want — or are able — to do the job.

 

Elect federal judges? Oh, please!

Many of those on the right are quite fond of criticizing “unelected federal judges” who issue rulings that go against their world view.

What, then, is their alternative? Do they want to elect those who sit on the federal bench? Do they wish to do away with the federal judiciary?

I mention this because the U.S. Supreme Court recently upheld a University of Michigan policy that disallows affirmative action practices when considering who the school should admit. Did those on the left issue similar cries against those “unelected judges”? I didn’t hear any.

And yet, when judges keep striking down states’ bans on same-sex marriage, the cries go out from those who think the federal judiciary is overreaching when it declares states cannot write laws that violate U.S. constitutional provisions, such as the one that provides for “equal protection” under the law, regardless of sexual orientation.

Perhaps my favorite criticism of the high court came when it ruled 5-4 to uphold the Affordable Care Act. The ruling was narrowly defined and it was decided by a single vote, when Chief Justice John Roberts voted with the majority to keep the ACA intact. The criticism — from the right, of course — went something like this: The law should be tossed out because a narrow majority on the Supreme Court voted to keep it, and that the one-vote majority really didn’t mean the law is constitutional.

The founders had it exactly right when they empowered the president with the authority to appoint judges to the bench for life. They sought to de-politicize the federal bench by disallowing the election of federal judges.

States, of course, retain the right to elect judges. Texas even elects judges on partisan ballots, meaning that judicial candidates of one party has a built-in advantage over candidates of the other party. In Texas, that means if you’re a Republican, you’re in; it used to be the other way around, when Democrats were dominant.

Either way, good judges from the “out” party are kicked out simply because they are of the wrong political persuasion.

The federal judiciary, from the Supreme Court on down, functions precisely as the framers intended for it.