Wednesday, November 7, 2012

Halls of Justice


When Atticus asked an all-white male jury seated for Tom Robinson’s trial for the forcible rape of a white woman, Atticus appealed not just to the civil law, but also to higher, sacred law, urging the men to set aside prejudice and tradition in favor of justice. Atticus said, “For God’s sake, do your duty” for there, in that courtroom and under the Eyes of Heaven, all men must be and should be treated equally. Clearly, Atticus held courtrooms in high esteem, suggesting that errors in men’s judgments may well be corrected in those rooms, especially if men present their most moral and ethical selves as they deliberate upon the evidence.

George Washington seemed to have a similar sentiment when Congress considered and later confirmed the first Attorney General of the United States. In offering the post to Edmund Randolph, Washington wrote:

“Impressed with a conviction that the due administration of justice is the firmest pillar of good Government, I have considered the first arrangement of the Judicial department as essential to the happiness of our Country, and to the stability of its political system; hence the selection of the fittest characters to expound the laws, and dispense justice, has been an invariable object of my anxious concern.”

Washington’s words in bold font above, with one slight change, now remind visitors to the New York State Supreme Courthouse of the crucial role that justice plays in the execution of governance. Architect Guy Lowell substituted the word true for due during the design and construction of the building in the early years of the twentieth century. Whether he did this in error or with intent is an argument for historians; what is clear is that for almost 100 years, men have looked up to those words carved in granite and admired the sentiment that calls them to govern well, falling back upon the pillars of good government, the judiciary, when men disagree about governing choices and actions.

But this branch, the judicial branch, is under attack today. Campaign advisors and strategists as well as the Chamber of Commerce have vested interests in judicial outcomes. Consequently, SuperPac money flows more freely and generously when a declared or tacit understanding passes between a sitting elected official or candidate and a donor. In Texas, for example, campaign contributions in excess of $100,000 and $200,000 qualified the contributor for membership in the Pioneer and Ranger programs, and these, according to Texans for Public Justice, resulted in 146 of 548 donors receiving political appointments in the Bush administration (http://www.harpers.org/ subjects/NoComment). When the appointments are to the judicial branch, it becomes more likely that justices will be partisan and deliberate with an ideological agenda.

In Iowa, 2010, three justices were removed because they turned aside a ban on same-sex marriage; a fourth wore a target on his back in the 2012 election. I am happy to report, however, that he retained his seat after a public educational campaign about the nonpartisan role a justice must play and how justices are vetted and appointed.

Those who would alter the nature of justice by appointing cronies to the bench or by politicizing the judicial branch claim that they are in a fight for freedom, but in Iowa, the question was whose freedom shall have precedence? Iowans for Freedom (IFF), the National Organization for Marriage (NOM), and a Mississippi-based organization known as the American Family Association (AFA) argue that their freedoms have been challenged because the freedom to marry has been granted to the LBGT community. IFF, NOM, and the AFA seek to limit another man or woman’s freedom in favor of their own, and they have put money on the line to affect the outcome of legal judicial reappointments. In my home state of OK, an aggressive telephone campaign urged voters to oust four justices who had ruled against a proposed personhood amendment to be voted on by the people in November 2012, but a last-minute television ad campaign featuring a prominent Democrat and Republican, united to speak for retention, won the day.

Worrisome to me is this campaign of retaliation for unfavorable decisions. It raises questions about the correct role of government with some citizens and citizen-groups taking the position that the last and final branch of government should become as politicized as the legislative and executive branches, that it should answer directly to the people when it rules in ways that some people do not understand or endorse.

Sadly, this is a debate in which few people engage, and even fewer show up to listen. If they did, they might learn that the proponents for a judicial branch elected by and for the people, a branch that answers to the whims of the electorate, runs counter to the Framers’ intent. Consider the points made in the first Federalist paper devoted to the judicial branch, Number 78, penned by Alexander Hamilton (http://www.founding fathers.info/ federalistpapers/fedindex.htm).

·      in a republic it [Judicial branch] is a no less excellent barrier to the encroachments and oppressions of the representative body.
·      And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. . . .
·      the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. . . .
·      the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. . . .
·      ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers’ (Hamilton quotes Montesquieu from Spirit of Laws to defend his point about the necessity for an independent judicial branch, and he continues in his own words). . .
·      nothing can contribute so much to its [the Judicial branch’s] firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security. . . .
·      It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Hamilton explains the role of the judicial branch in a republic and argues for the absolute independence as well as superiority of the judiciary in order to protect the people themselves from the whims and vicissitudes of the other two branches of government, and from themselves. A man’s day in court and a law’s examination in court are essential to correct the misdirection and errors in judgment to which human beings are prone. Not to understand or appreciate the judicial role is not to understand and appreciate the Republic which protects us from tyranny and abuse.

The IFF, the NOW, and the AFA must make their arguments for or against an issue inside a courtroom, not in the marketplace of politics. More important, they must and should graciously grant the superiority of the court’s judgment until such time as new law may be written and tried in the public arena on its way to a courtroom.

So what is the duty to which Atticus calls us? To know and understand the role of the judiciary in the lives of U. S. citizens and to grant the judiciary a superior role in determining what is just.