Can the Judiciary Be Free From Partisan Bias?

Samuel Chase was a Founding Father from Maryland, a member of the Sons of Liberty, and one of the immortal fifty-six men who signed the Declaration of Independence.  He was also, by most accounts, a total jerk. He was rumored to have engaged in price gouging and insider trading during the war and was known for his biting tongue and shrill invective.  Nobody denied he had a good legal mind, though, and George Washington appointed Chase to the United States Supreme Court in 1796.

Here's the problem.  Chase was a devoted Federalist.  When the Democratic-Republicans led by Thomas Jefferson swept into the White House and Congress in the 1800 election, Chase was outraged.  From his position on the federal bench, Chase decided to launch a political counter attack. Abandoning any pretense of judicial impartiality, Chase harangued juries (Supreme Court justices had circuit court duties in those days) with anti-Republican and pro-Federalist speeches and gave blatantly partisan instructions to grand juries about who needed to be indicted.  He became one of the biggest thorns in the side of President Jefferson, who already was dismayed at the Federalist domination of the courts despite the results of the 1800 election.

In 1804, at Jefferson's urging, Chase was impeached by the House of Representatives, in a lopsided vote of 73 to 32.  All the charges against him focused on the clear partisan bias he displayed while executing his judicial duties. At the end of his trial in the Senate, though, Chase was acquitted on all counts, with the closest vote being 19 to 15 (three votes short of the required two-thirds majority).  Jefferson and his allies were left with a lot of egg on their faces and Chase continued to serve on the Supreme Court until his death in 1811. He is remembered today chiefly for being both the first and the last Supreme Court justice to be impeached.

Why am I telling you this history story?  Because the impeachment trial of Justice Chase was a defining moment for American government.  On the one hand, the executive and legislative branches learned the hard way the perils of using the impeachment stick against members of the judicial branch.  On the other hand, judges took note that being overly partisan on the bench might get them thrown out of office and was to be avoided, with none learning this lesson better than the great Chief Justice John Marshall.  Both sides learned these lessons well, and the Samuel Chase impeachment trial helped push America towards the idea that the court system is supposed to remain above politics as much as possible.

In our own time, we would do well to relearn this lesson, for partisan rancor has infected our judicial system like a nasty virus.  It seems that every nomination to a federal court becomes a no-holds-barred battle between Democrats and Republicans, with nominations to the Supreme Court sending the country into an acrimonious frenzy.  We routinely describe judges, and especially Supreme Court justices, as being in either the "liberal" or "conservative" wing, having long ago forgotten that a judge is supposed to uphold the law and the Constitution rather than serve a preferred political ideology.  If we do not pull back from our extension of political prejudices into the judicial branch, the result will eventually be disaster for our republic.

As a single example, consider the case of Kitzmiller vs. Dover Area School District, which took place in Pennsylvania in 2005 and which dealt with the teaching of "intelligent design" in science classes as an alternative to the theory of evolution.  John Jones, a federal district judge appointed by President George W. Bush, ruled in favor of the plaintiffs and ordered that the teaching of intelligent design violated the Establishment Clause of the First Amendment.  In response, many furious Republicans attacked Judge Jones as a traitor. Their position was that since Judge Jones was appointed to office by a conservative Republican president, he was somehow obligated to use his position as a judge to advance conservatism and the interests of the Republican Party.  Call me crazy, but the duty of Judge Jones, like any judge in the United States, is to uphold the law and the Constitution.

To me, it's obviously absurd to think in terms of whether federal judges and Supreme Court justices are "conservative" or "liberal" and just ask ourselves whether they understand the law and uphold the Constitution.  Indeed, if you ask me, expressing sympathy through their words or deeds with one particular political ideology should immediately disqualify a person from a seat on the federal bench.

Which brings us to the tortured confirmation process for Judge Brett Kavanaugh, the most divisive Supreme Court nomination fight for many decades, which is playing out before our eyes at this very moment.  Let's set aside the question of whether the accusations of sexual assault against him are true or false. The man's statements during his hearing before the Judiciary Committee on September 27 were unprecedented, for he bitterly attacked "the left" in general, the Democratic Party in particular, and even the Clintons as individuals.  Having done so, while millions of Americans watched on live television, how can Kavanaugh claim to be an impartial and unbiased Supreme Court justice if he is now confirmed? Will he recuse himself every time a case involving a Democrat or a left-leaning organization comes before the Court?

Consider the following scenario.  Assume that Brett Kavanaugh has been confirmed and is now sitting as a Supreme Court justice.  A case comes before the Supreme Court, in which the Republican Party in a generally Democratic state is suing because they believe the congressional district map is an unconstitutional political gerrymander that unfairly favors the Democrats.  The Court, by a 5-4 vote, rules in favor of the Republicans, with Kavanaugh voting with the majority. The state's Democratic governor and Democratic state legislature object, asserting that Kavanaugh should have recused himself from the case due to his well-known antipathy to the Democratic Party.  They refuse to accept the Supreme Court's decision and insist that they will use the original congressional district map in the upcoming elections. The result is a constitutional crisis.

To me, such scenarios are likely to happen in the very near future and with frightening frequency.  If the American people do not rein in the partisan madness that has infected our judicial system, one of the key pillars of our great republic will totter and eventually fall.

I believe the solution to this problem should be a constitutional amendment that raises the requirement for the confirmation of federal judges, including Supreme Court justices, from a simple majority of the Senate to a two-thirds majority.  Under our current rules, the two major political parties simply try to ram through their chosen candidates, carefully selected for their "liberal" or "conservative" credentials, whenever they happen to control the White House and have a majority in the Senate.  If the required majority is raised to two-thirds, it would effectively mean that no judge could be confirmed without support extending beyond a single political party. More importantly, it would force the President of the United States, whomever he or she happened to be, to nominate only those people who could garner such support.  In other words, people trained in the law who respect and uphold the Constitution.

That's a solution for the long-term, of course, as constitutional amendments are far from easy to enact.  In the meantime, the best thing the American people can do to solve this problem is to elect independent candidates to the Senate of the sort supported by Unite America.  Unattached to the partisan agendas of the two major political parties, they will have greater credibility in backing nominees for judicial office based only on their adherence to the Constitution of the United States rather than some vacuous partisan ideology.

As always, it's up to the American people.

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Jeff is also the author of the Civil War narrative, "Shattered Nation: An Alternate History Novel of the American Civil War". 

Views and opinions expressed in guest posts do not necessarily reflect those of Unite America.