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Ned Barnett: An independent judiciary is under siege
November 30, 2017
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While special counsel Robert Mueller investigates shadowy Russian interference in the 2016 presidential election, another vital element of democracy is being dangerously manipulated for all to see. It’s not being done by Russians. It’s being done by Republicans who are undermining the legitimacy of the courts at the federal level and in North Carolina.

The problem starts at the nation’s highest court. What President Trump and Senate leader Mitch McConnell hail as their greatest achievement – the elevation of Neil Gorsuch to the Supreme Court – was the opposite of a legal triumph. It defied the Constitution’s instruction that the “president will nominate.”

The Senate’s Republican majority refused for nearly a year to consider President Obama’s nominee to replace the late Justice Antonin Scalia and then approved President Trump’s choice of Gorsuch. It did so by also ending the longstanding requirement that high-court nominees receive at least 60 votes. Gorsuch was approved 54-45.

The raw politics of that appointment seriously damaged the court’s authority by politicising its makeup. But the damage has hardly stopped there. Senate Republicans, who blocked virtually all of Obama’s judicial nominees after they took control of the Senate in the 2014 election, now have relatively young, conservative nominees quickly moving through the upper chamber on a political conveyor belt.

In assessing these nominees, Republicans apparently are weighing ideology more than legal qualifications. They have abandoned the tradition of having nominees graded by the American Bar Association. Instead they’re relying on nominees suggested by the conservative Federalist Society.

Recently, Sen. Charles E. Grassley of Iowa, the head of the Senate Judiciary Committee, restricted the tradition that allowed senators to hold up federal appeals court nominees from their home state by withholding a form known as a “blue slip.” With the 60-vote rule also gone, there is virtually nothing the minority party can do to keep a highly partisan nominee from receiving a lifetime appointment to the federal bench.

David W. Rohde, a professor of political science at Duke University whose research includes the Congress, the presidency, the Supreme Court, said the increasingly partisanship behind judicial nominations reflects the increasing polarization of American politics.

As parties lose moderate members, their standards for judges become more rigidly ideological. “This whole process threatens the legitimacy of the court and makes it harder for those people on the losing side to still regard a decision as something that should be followed,” he said.

Republicans are exploiting the lack of moderating influences. The Senate Judiciary Committee has approved four nominees the American Bar Association deemed “not qualified.” The most glaringly unqualified is a 36-year-old Justice Department lawyer who has never tried a case. The Senate Judiciary Committee approved him by a 11-9 party line vote, including a favorable vote from North Carolina Republican Sen. Thom Tillis.

In North Carolina, the effort to politicise the judiciary is even more brazen. The Republican-led General Assembly has made judicial elections partisan and moved to gerrymander judicial election districts. Meanwhile, Republicans are proposing a constitutional amendment to have judges at all levels run for election every two years, rather than the current intervals of four or eight years. The frequent elections, in which there would be no primaries, would turn judges into permanent partisan candidates and their races into multiple-candidate carnivals.

Some judges think the extreme call for two-year elections is really intended to get judges to support being appointed by the legislature instead. Appointed judges can be a good thing when the appointments are based on merit as determined by an independent commission. But North Carolina’s judiciary would become hopelessly partisan if judge selection is left to the legislature’s majority party.

State Rep Joe John, (D-Wake), who was elected to the legislature in 2016 after serving 25 years a judge, said at the same event, “the North Carolina judiciary is under siege” as Republicans seek “to rip the blindfold of impartiality from Lady Justice.”

The law is a powerful thing, but the legitimacy of the judges who interpret it rests on a delicate public perception of judicial independence. Those who would turn the judicial branch into a party wing will destroy what they claim they’re improving.

Judges, lawyers, law professors and lawmakers must make a major push to preserve and protect the Constitutions of the United States and North Carolina by preserving and protecting an independent judiciary.

Tribune News Service

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