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Senator Sheldon Whitehouse, D-Rhode Island, and four of his Democratic colleagues, have threat Supreme Court with "restructuring" if it does not "cure" itself. Basically, they flirt with the courts.
To the members of the Supreme Court, especially to the politically sensitive Chief Justice John Roberts, we say: Ignore this nonsense. And at the legal establishment, we ask: where is your indignation?
Threatening Whitehouse amicus brief is part of the broader strategy of the left to politicize the judicial process. In their view, any decision that does not serve their interests is de facto illegitimate. Thus, for example, a decision in favor of so-called "corporate interests" can not be what the law requires, but must have been dictated by the judge's personal political agenda.
"Restructuring" is a particularly clever example of misdirection. The structure of the Supreme Court, or the justice system at large, is obviously not the problem. The problem, at least for the left, is that the courts – whatever their structure – do not give the political results they want quite often. Whitehouse and his cohorts therefore suggest "changes" that they believe will produce more favorable results.
Some have suggested, for example, increase the number of judges at the Supreme Court, rotation of judges in one way or another, or imposition of term limits on federal judges. A leftist group, Demand Justice, insists that the next democratic president refuses to name anyone who has ever been a partner of a large law firm before a federal court.
Each of these proposals aims to manipulate the judicial system to control judicial decisions. We have been here before and it will not end well.
President Franklin Roosevelt threatened to "restructure"The Supreme Court when it canceled parts of its New Deal. Although his legislative proposal to "rally" the court has failed, some historians believe his threat has put pressure on one or two judges (enough to get the majority) to start supporting Roosevelt's New Deal initiatives.
It should be noted that Roosevelt ended up packing his bags at the Supreme Court, he simply made it to the old. Replacing eight of the nine judges in just five years, he created a court willing to take liberties with the Constitution and laws.
It is essential for the health of our republic that the present judges rise above the political fray. As Judge Robert Bork wrotethe court "must be governed by principles outside the will of the judges", otherwise "there is no reason for anyone to obey it".
This is what the rule of law means. History shows that when judges decide cases not by principle but by compromise, they fuel political unrest.
Paradoxically, the oath prescribed by federal law requires judges to settle cases "impartially" without regard to the identity of the parties: it is the opposite of what Whitehouse and its similar ask. Hopefully the judges will remain committed to their duty, as Chief Justice John Roberts said, "call balls and keystrokes. "
But that will not be enough. The commitment of the judiciary to independence means that judges can not enter this political melee and actively defend themselves. Instead, the legal profession must intervene and defend the independence and impartiality of the judiciary. Yet the judiciary has remained largely silent following the recent wave of attacks against the court.
This was not always the case.
In 1996, for example, the American Bar Association was so concerned about political pressure on the courts that it created a commission and a committee. Standing Committee on Judicial Independence. What was the threat at the time? The ABA commission has put forward a so-called "inappropriate criticism".
In 2017, the ABA declared Judicial independence was "at risk" and asked its members, "Are we doing enough to help?" Recognizing that the judiciary can not defend itself from political attacks, a senior official affirmed that "
In 2018, the ABA again called the lawyers defend the judiciary against "unfair criticism". He added that when the judiciary is attacked, "we must react on our own as fast as possible, especially in today's world of instant communication through social media."
Barely a month ago, ABA defended the judiciary against the attacks of President Trump. ABA President Linda Klein condemned Trump 's critics of judges:attacks on our constitution. The association then convened a panel of judges at its annual meeting to discuss Trump's alleged efforts to "undermine the courts."
If the legal establishment nevertheless thinks that mere criticisms (intemperate or otherwise) threaten the independence of justice, why is it not hiding against the attacks of the left against the court "legitimacyAnd threats of "restructuring" the justice system itself?
Threats like Whitehouse are much more serious than anything that has been attempted in the past. If the legal establishment means what it says and wants to preserve its own credibility, it is time to take action and condemn the flirtation between Democrats and the courts.
GianCarlo Canaparo is a lawyer at the Legal and Judicial Studies Center of the Meese Foundation of the Heritage Foundation. Thomas L. Jipping is the deputy director of the center.
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