A recent story includes this:

According to the Wall Street Journal, a remarkable 91% of Americans believe an independent judiciary is a crucial safeguard of our civil liberties. The just-released Mason-Dixon poll also shows that 72% of Americans believe that the politicization of the Supreme Court threatens judicial independence and 59% oppose attacks on the integrity of some of the justices.  

Looking at this is, to a lover of liberty, a heartwarming bit of news. At first.

But then we realize (again) that Americans think of the judiciary as “independent:” a third branch of government at both the State and the federal level.

Just as Americans think that the Supremes are not political. And that judges have integrity.

At best, all these ideas are, shall we say, debatable.

Independent? Yes and no. The president appoints justices and judges. Congress (the Senate, specifically, whose president is the VP) approves (confirms) the appointments. Congress has the power to impeach, try, convict and therefore remove any judge or justice: a rarely-used power but still a check.

But there is more: who controls the purse strings of the Courts? Congress and the President. Who actually specifies what powers the Courts have to decide various matters? Again, Congress and the President. Who establishes the number of districts, appeals courts, and even the number of Nazgul? (Supreme Court Justices?) Again, Congress and the President. Money is the key: they know which side their bread is buttered on.

(Which is no doubt a reason that the courts have stolen away State powers more and more and given them to the FedGov. Who pays their salaries? AND their expenses?)

As the Roosevelt so-called “failed” court packing effort back in the 1930s proves, the White House and Capitol (Congress) have significant power over the Court and has more than once influenced – even forced – the Court to make certain decisions. This does not even include the power of the other two branches to make secret deals with judges and justices to take certain positions.

Which shows that justices and judges are NOT a-political at all. Of course, we know that the two old parties make that clear in their confirmation hearings, and off hand, we cannot think of a single president in the last century-plus that nominated a justice of the other party. Since most judges and justices start out as attorneys elected to office at the city or county level (usually partisan), their political leanings are well-known. Sure, they might give up their party affiliation when they are appointed to some bench. But really? How many change their political views?

Last, and the above two discussions really make this into a joke: do judges have integrity? Even to the extent of a crooked cop who at least stays pay? Pretend all we want, the answer seems to be, “not much.” Oh yes, there are exceptions, and even the most corrupt and wicked of judges sometimes can be entreated to provide true justice, as Jesus’ parable explains. But don’t place any large bets on it. Ever.

The facts of the matter are simple: if we had moral, honest attorneys who become judges and who in turn are appointed to ever more important positions in our system, the system might – say again, might – work. But the historical evidence is that the American system of justice generally fails. At least in any matter in which the state – government – has a vested interest. Not just civil, but criminal.

It also explains why the jury system – both Grand and Petit (Trial) – are mortibund. Judges like the system: they love to be in charge in the courtroom and the hearing chamber, and succeed in buffaloing both White House and Congress. Even when those two branches of government are not in the hands of lawyers. And therefore part of the fraternity which rivals (or exceeds) the closeness of any Masonic order or mafia bonding.

Solution? Limit the power of attorneys and judges – start with term limits and then establish strict and specific codes of conduct administered by Roman-style censors and ombudsmen. Restore and give more power to juries, including the power to accept and dismiss judges. Create new and better ways to finance court operations and pay judges and staff. Expose judges and staffs to the light of day on a constant basis.

There are many more ideas. Perhaps we can explore those in future commentary, along with ideas from readers.