Sunday, December 11, 2011

ask the right questions

Once again we have a bit of humor in the presidential race , thanks to Rick Perry. At a meeting with an Iowa newspaper's editorial board he was criticizing President Obama's Supreme Court appointees, yet couldn't remember correctly the name of one (Sotomayor) and misstated the number of Justices on the Court. Surely a candidate for president should know these things. The filling of a Supreme Court vacancy is a vital presidential task and one that may arise during this next presidential term, considering Justice Ginzberg's health. While it is important that a candidate be accurate in these details , however, this is not what got my attention in his comments.

As we laugh at these gaffs we often miss the bigger issue. It is the wrongful thinking that is behind the statements these candidates make. Because Rick Perry is not alone in his sentiments, just the most visible at times. He used two adjectives to describe the Justices, used both negatively, when only one is true and that one should be viewed as a positive not negative.

He said that the Justices were "unelected" and "unaccountable". The first is true but for reasons I will explain shortly, this I believe is a positive, not negative characteristic of both the Supreme Court and the rest of the federal court system. The second assertion is definitely false, but you have to think harder than a "fifth grader" to understand the reasons why.

First there is the appointment and confirmation process, where the President and the Senate, representing the other two branches of our government (both elected by the people) , choose the members of the Court. Then there is the ability of a latter Court to overturn earlier decisions after review (see Plessy v Ferguson (1896) overturned by the Brown decision (1954) as the most notable example).

There is also the ability for Congress to pass Constitutional amendments to correct deficiencies in the law and render moot a Court's decision. Prime example of this was the 13th Amendment (1865) , outlawing slavery , in response to the Dred Scott decision . There was also the 16th Amendment (1913) ,passed to overcome Court objections to a federal income tax.

And there is the matter of impeachment. Just as for the President, any member of the federal judiciary can be impeached by the House of Representatives and face trial in the Senate, with conviction resulting in removal from office. Throughout our history 19 federal court justices have been impeached (including one Supreme Court justice) and several have been removed from office after trial in the Senate. So you see, the justices and their decisions are accountable.

The other contention, that they are unelected, is true. But I would contend that this is a positive characteristic, not negative. I have always felt that the election of judges, the common practice for state courts, was not good. Members of the legislative and executive branches should be responsive to the people. The members of the judicial branch, the judges, should be responsive to the law, protecting the people's rights. All rights, not just the majority.

When cases reach the federal courts the stakes are higher. The rulings will often affect many people from multiple states (the health care reform cases are one example) and the questions reach to the core of fundamental rights and freedoms. Also, the issues may invoke alleged overreach by the executive or legislative branches of the federal government. The courts must have the independence to rule against either branch if the case warrants. A lifetime appointment guarantees this.

Our rights and freedoms guaranteed by the Constitution involve the right to be unpopular. To voice unpopular views, have unpopular beliefs, to gather with unpopular people to advocate unpopular causes. Popular opinions do not need protection. Majority views do not need special protection. They are protected by their own popularity. But minority opinions, like minority populations, are vulnerable to the "tyranny of the majority", and need safeguarding by a court system where judges are free to make the "unpopular" decision to defend them.

Our history as a country is one of evolving protection for minority populations and views, expanding our understanding of what it means to be free, and challenging ourselves to open our minds to the truth that if anyone's freedom is curtailed we all suffer. We cannot go backward. We must stay vigilant. Rick Perry is not alone in his skewed views on the Court…his fellow GOP candidates all share basically the same views. We must hold them "accountable" for these and render them all "unelected"

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