Those who run our court system and claim that it can dispense justice in an impartial way hate even the slightest suggestion that politics might influence their decisions. A few years back, after a federal district court decision with major political implications, I mentioned in a story that the judge had been nominated to the bench by a Republican president. Later that day, I got an email from him directly, complaining that my reporting left an impression that his ruling had been influenced by his ideology. Actually, I had taken great pains to mention only that fact, leaving it to the audience to decide whether it was relevant.
Normally a judge wouldn’t think of communicating his displeasure directly. Sometimes a minion would do it, or he or she would complain to associates or simply seethe in private. At the time, I responded that I’d be happy to offer him television time to respond. Frankly, I was being unfair, because those on the federal bench can get in a heap of trouble if they go on TV or make any extrajudicial comment in media. So, in truth, I was telling his honor that while I always welcome viewer comments, he should bug off.
Besides, as the lawyers would say, the prima facie evidence suggests that our judges are indeed heavily influenced by their political philosophies, and that many of their decisions are distorted by them. We certainly don’t have to look very hard. The Supreme Court is openly divided into conservative and liberal blocs, with one guy, Anthony Kennedy, out there as the supposed swing vote. Granted, some of the justices can express their predispositions in unpredictable ways, but they are obviously guided by their right or left leanings. Chief Justice John Roberts’ claim during his confirmation hearing that they’re ideally an “umpire,” has become a laugh line, except maybe to the real ones in baseball.
And it’s not only the Supremes. We’ve just been exposed to the sad spectacle of two different federal appeals courts making diametrically opposed rulings on whether insurance subsidies for Obamacare are legal in the 36 states that were forced to rely on federal exchanges to enroll customers for health insurance. If not, it could gut the Affordable Care Act.
The arguments were the same: six judges on two courts heard them. Then, every one followed the party line. On the D.C. Circuit, it was 2-to-1 against the subsidies, two Republican appointees against, the Democrat for. In Richmond at the 4th Circuit, all three judges were Democrats, and all three ruled the subsidies were lawful — an amazing coincidence.
Actually, the official website of the United States Courts states, “The work of the federal courts touches upon many of the most significant issues affecting the American people, and federal judges exercise wide authority and discretion in the cases over which they preside.”
So a president’s most important legacy is his picks for the federal bench. The judges and justices are there for life, unless they do something so egregious that they’re impeached in the House of Representatives, convicted by the Senate and removed. It’s happened just eight times in U.S. history.
As tough as it is to change the Constitution, perhaps we need to revisit lifetime tenure. Certainly the independence of the federal bench has led to decisions that have righted many wrongs in our society. The civil-rights rulings in the face of popular passions are a shining example. And Founding Father Alexander Hamilton himself argued that appointments for life were “the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”
The question is whether we can count on that impartiality or whether it’s just a myth passed on by judges who are, after all, fallible human beings — and obviously political ones.
Bob Franken is a longtime broadcast journalist including 20 years at CNN.