Businessmen making decisions, even those based on purely selfish interests, increase their nation's wealth. Thus is Adam Smith's "Unseen Hand" formed, pointing the way to the nation's progress, as Smith writes in his "The Wealth of Nations." Decisions President Bush makes in nominating federal judges will become Bush's Unseen Hand, without the salutary effect Smith ascribes to business decisions. This is because Bush made it abundantly clear during his re-election campaign that his nomination for judges, especially to to the Supreme Court, must meet his litmus test, i.e., be "strict constructionists." The likely consequence of an increasingly aging Court is the nomination of one or more Justices who share Bush's view of the state vis-a-vis the citizen. With a Republican majority in the Senate, Roe v Wade and similar Court decisions may be reversed or at least modified.
Long after Bush leaves office, his appointees will continue to influence, if not dominate, the decisions of the federal judiciary. A judge who is relatively young at the time of his or her appointment conceivably could be making decisions for several decades into the future, each more or less comporting with Bush's litmus test. This will be the case despite the fact that the majority of the electorate in succeeding elections may be very different than the majority that voted Bush into office in 2004. Indeed, our nation's history has been chiefly characterized by electoral swings alternately to the left and right of center -- hence there needs to be some means of ensuring that the judiciary will not continue to be Bush's Unseen Hand, or for that matter, the Unseen Hand of any future President.
To the extent possible, Presidential nominations to the Judiciary need to be divorced from partisan politics. One way of doing this would be by causing a blue ribbon committee to be appointed by the American Bar Association who would offer the President a slate of names of lawyers, preferably those with judicial experience. Among the committee's selection criteria: A showing of outstanding capabilities in the law, with wide-ranging experience in the great variety of matters that come before the courts and withal a seasoned intellect, (Think of a John Marshall Harlan, an Oliver Wendell Holmes, a Learned Hand, a Harlan Stone, a Louis Brandeis). No doubt, other ways of "filtering" the selection process , other than the ABA method outlined here, may be considered -- a continuing bi-partisan commission set up by Congress for the purpose may be another. Regardless, any method is much to be preferred to the hit or miss system our nation has used since its inception. We should not be satisfied with anything less than the best way of selecting men and women to serve in an institution that has such a profound impact upon our lives.
There also needs to be a way of overcoming, or at least reducing, the effect of the point of view of a given court member who is consistently conservative, or consistently liberal, or swing, depending on the case before the court. A particular point of view, as in the present Supreme Court, appears to be routinely predictableand seemingly immutable during the lifetime service of these nine Justices. The best way of altering this unwise scenario is by amending Article III of the Constitution that gives judges lifetime tenure as long as they behave themselves. As has been recommended by many, the Amendment should provide for fixed, non-renewable terms for judges -- non-renewable so decisions they make toward the end of their term would not be influenced by a desire to please the then sitting President. A more compelling reason: the Amendment would work to reduce those instances, too many, in which the mental capacities of sitting judges are impaired by the progressive deterioration brought about by senile dementia.
It is important to know why, of all Presidential appointees, judges had been singled out for lifetime tenure. The Framers were swayed by Alexander Hamilton, who claimed in Federalist No. 78, that the Judicial Branch was "beyond comparison the weakest of the three departments of power." Accordingly, Hamilton argued, that lifetime tenure was the best way of ensuring the independence of judges "against the ill effects of occasional ill humours in the society."
Clearly, there has been a significant shift in the power of the Judiciary since Hamilton penned his concerns in 1787. The shift began in the 1803 decision of the Court in Marbury v Madison, in which Justice John Marshall famously ruled, "It is the province of the Court to say what the law is." In case after case, this keystone decision has become the basis for judicial review of any action by the other two branches of government. (If further proof of the Judiciary's power is needed, who can deny it when the Court decided it had the power to appoint the President of the United States, as it did in Bush v Gore). Not surprisingly, the Court's power of judicial review has also had the effect of keeping the other two branches in check, just as the Framers intended in the "Checks and Balances" they so artfully built into the Constitution.
So Hamilton's brooding presence can at last be at rest. The "ill humours in the society" he worried about are no longer any reason to keep lifetime tenure for judges.
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