As we all know, the U.S. Constitution splits the government into three branches. Congress makes laws that outline the permissible action; judges meter out punishment for violators; the executive puts laws into action.
These equal and independent branches, the theory goes, prevent anyone from grabbing full power and becoming a dictator. To further ensure that the government cannot become despotic, the Constitution – via the Bill of Rights – enumerates restrictions on what the government can compel a citizen to do. One of those restrictions guarantees free speech and free press, which sheds disinfecting sunlight of public scrutiny on shady business the government or citizens may have engaged in.
America’s two-party politics seems to be a good fit for the split-government system envisioned by the Founding Fathers. As each party vies for power and tries to unseat the opponent, partisanship exposes problems. This allows for the opportunity to fix them when the public, informed by the press, affects changes via regularly-held elections, making sure the government acts in the public interest.
When all those pieces work as intended – detecting and blocking malfeasance and overreach in each other – this system works well. But what if branches of government, political parties and the press find it convenient to engage in mutual backscratching, not mutual correction?
Does it happen? Don’t we read how the House and the Senate battle over what should be in a bill; of presidents vetoing congressional initiatives, and those vetoes getting overridden; of presidential impeachments? The legislative and the executive seem to be at perpetual loggerheads, the press reporting daily on their friction points. Acres of newsprint were devoted to investigating President Trump; on occasion, a senator or a congressman would get rapped for getting too-cozy with a lobbyist, or for playing hooky during a crisis.
But how about the inner workings of the third branch – the judiciary? They are neither on the journalistic radar, nor that of the other two branches of the government. Once on the bench, judges are treated as oracles, not as subjects to checks, balances, or disinfecting sunlight of journalistic scrutiny. Have you ever read a New York Times or a Washington Post expose of judicial chicanery, unless it involved bribes? I haven’t.
Has Congress ever looked into judicial decision-making process, establishing clear-cut steps which judges must take to decide a case, and be liable for fraud when they don’t? No. The media, the legislators of both parties, and the executive branch all tiptoe around the judiciary.
The moment President Trump opened his mouth (or was it his Twitter feed?) to suggest that Trump-appointed judges decide cases differently than the Obama appointees, all hell broke loose. Loud howls of indignant condemnation of this terrible desecration of the public discourse came fast and furious from every direction, stopping the discussion right in its tracks. So much for one branch’s attempt at checking abuses of another branch. When it comes to judges, no checks and balances, no disinfecting light of public scrutiny are permitted. Insofar as the press is concerned, the government has only two branches, not three. Judiciary is off-limits.
Yet there is plenty to disinfect there. Given the absence of corrective action from the executive and legislative branches and of press scrutiny of judges, is it surprising that judging is often arbitrary, and that the judicial decision-making process routinely violates the basic norms of “due process of the law?”
As I learned in my litigation (Overview Books v. US, if you want to check), judges feel free to ignore parties’ argument, replacing it in their decisions with the utterly bogus argument of judges’ own concoction pulled out of thin air to decide cases the way they want to, not the way they have to. There is no “due process” in the judicial decision-making process – for a simple reason that it follows no “process” at all. Judges routinely act as lawyers for the parties they want to win by using judges’ own, “sua sponte” argument, in violation of any notion of impartiality.
What is remarkable is not only the complete breakdown of Constitutionally-mandated rules of impartial judicial decision-making, but also the arrogant brazenness of justification for that breakdown. When sued for fraud – for replacing parties’ argument with judges’ is clear-cut judicial fraud – the district attorneys defending judges argue, with not so much as a blush, that in Pierson v Ray judges gave themselves the right to act from the bench “maliciously and corruptly!” And instead of reporting on front pages the sensational, Pulitzer-class news that the full third of US government – the judiciary – is officially and proudly “corrupt and malicious,” the mainstream press stays mum. Journalists do not return e-mails and calls; op-eds are not published. If it is about judges, “see no evil, hear no evil, and speak no evil” is the rule.
Lord Acton observed that “power corrupts; absolute power corrupts absolutely.” As if to prove him right, judges got so corrupted by de-facto absolute power conferred on them by the absence of the corrective checks from the other branches of government and press investigations that they don’t even mind admitting that they are corrupt. Yet even this, astonishing revelation does not move our press, our legislators, or our civic organizations to engage, putting judges into their proper place as a branch of government operating under the law – the “due process of the law,” which in any interpretation forbids judges from acting as parties to the case argued before them, as the judges do when adjudicating their own argument instead of that of the parties, under the full protection of the self-given “corrupt and malicious” clause.
Why do legislators and the executive branch refuse to act as “checks and balances” on the judicial branch? It’s rather simple. Contrary to Founding Fathers’ intentions, the judicial branch is not independent. Nominated by the executive and confirmed by the legislature, judges are political progeny of two other branches; as such, they are only as independent as children in regular families are independent from their parents, and parents are from children. Sure, children rebel sometimes. Yet exceptions only prove the rule; on the whole, judges don’t go against their political parents in the executive and legislature whose ideology, after all, they share. Short of something scandalously egregious or unpopular, they will happily sanctify as legal their political parents’ actions irrespective of their actual legality. This is where the ability to judge arbitrarily, to judge judges’ argument, not the argument of the parties, is indispensable; “due process of the law” is much too unreliable and uncertain. Hence, no checks and balances from the executive and the legislature in defense of “due process.” They just want to have on the bench their ideological kin, judges who would back their agenda – “honestly if they can, dishonestly if they must,” to quote Mark Twain.
A judge may show disappointing independence, or be an uncooperative ideological leftover from the prior administration; yet hope springs eternal. A judge’s retirement or death always offers a fresh start, an opportunity for seating someone more reliable – though at times more drastic measures are used. When the Supreme Court got in the way of FDR’s reformist agenda, he threatened to expand it and fill the resulting vacancies with his own ideological kin, pushing its balance of votes in his favor, and the “independent” Supreme Court fell into line to become a subservient Supreme Court; what it ruled to be unconstitutional before FDR’s threat of court packing, suddenly became constitutional.
The judicial branch would be genuinely independent only if judging were a profession and judges were taught judicial decision-making in judging schools – trained to evaluate parties’ respective argument for its factual accuracy, relevance, and weight, and hired upon successful graduation by the government just like other professionals it hires, without an ideological litmus test. Without nomination and confirmation, judges would not be beholden to any party, ideology, or person; nor would they have the tool of argument replacement that allows judicial fraud and arbitrary judging, and would thus be forced to dispense straightforward justice, knowing full well that they would be fired for injecting their own argument into the decision. When judicial decision flows from the plaintiff’s and defendant’s argument rather than judge’s, the judge being a mere human tool of the “due process of the law,” just a flesh-and-blood Lady Justice impartially weighing parties’ argument without adding anything to, nor removing anything from what the parties themselves placed on their respective trays of the scale of justice, than judge’s personal political views won’t matter any more than they do in a car mechanic or a carpenter. Judges would be truly independent from politics, and by extension, from the other branches of the government.
While the executive and legislators have vested interest in judges having the ability to act arbitrarily, “maliciously and corruptly” if needed, why is the press silent? It has its own incentive, I guess. Judges bought it off by giving it extremely valuable privileges which make journalists’ life easy: in New York Times v Sullivan judges ruled that press’ lies are protected speech. Miami Herald v Tornillo puts the press under no obligation to report truthful information it does not want the public to know. Thus, judges allowed the press to lie both by commission and by omission – and journalists return the favor by using those privileges in adamantly refusing to shed the disinfecting light of public scrutiny on “corrupt and malicious” judging, It is less clear to me why the grandiloquently-named organizations like the Brennan Center for Justice, which would seemingly march straight into action at the mere mention of judicial fraud which thwarts justice they presumably champion, refuse to do so. Good academic salaries and perks quell the conscience, I guess.
The end result of the absence of scrutiny of judges is that the public sees them as some semi-divine, priestly presences that are beyond criticism if not beyond comprehension, not as just another branch of government that We the People, for our own good, must control.
Establishment of the United States was the culmination of the Age of Reason in the sphere of politics – and checks, balances, and press scrutiny are all tools of reason. Judges are part of the government, and should not be allowed to operate in the dark, outside of “due process of the law.” “Checks and balances” should apply to them, too.
The opinions expressed in this article are the beliefs of the author only and do not reflect the opinion of Attorney at Law Magazine or its editorial staff.
