Courts and Politics, Term Paper Example

There is a separate and distinctive process for nominating and appointing judges as the state, district and federal levels. With an appointment comes a huge responsibility as well as some discretionary privileges that will be discussed in this paper. Often discretionary powers can be harmful to the citizens of the nation because they do not protect the citizens by virtue of the laws laid down. The Supreme Court judges can only overturn a judgement if a previous court (lower jurisdiction) has erred in judgment by virtue of illegality, irrationality or unconstitutionality. The Supreme Court is the law of the land and definitively a Constitutional law is rarely touched expressly but may be inadvertently through changing a statute. The implications of this will be briefly discussed in this paper to determine if this is a form of political abuse by the judges. Further will be discussed the possible solutions to preventing the judgeships from becoming too political, if any.

Federal Judges and Justices are nominated “through the Judiciary Committee as well as through the political pressures of the media, the American Bar Association and other special interest lobbying groups of which have helped to defeat Judge Bork’s nomination in the past. The nomination of judges at the federal level is driven by partisan and ideological concerns.”  (Epstein and Segal 2005). There is not much control over a judgeship once the judge is elected for he/she is in the seat forever unless discerned to be unethical or to possess criminal behaviour but there has been times where filibustering has occurred and the legislative has tried to remove judges by attempting to force them out by removing their tenure or forcing early retirement to no avail. Some judges are appointed by merit through a nominating committee and some are appointed by partisan. Federal judges are appointed with some courtesy of merit but the degree of merit has always strongly been debated. Jimmy Carter argued that federal judges should be selected on the basis of merit alone. Some state judges are appointed but the majority of them are elected by the citizens of the state based on merits for a person has to have a law degree and some type of formal magistrate (lower court) judgeship experience is preferred. Justice O’Conner has argued that judges at the state level should not be elected because there is a tendency for politics to play a part in the position afterwards due to the funding of campaign contributions. Whereas if the judge were appointed the bias would be removed. However the people would be taken out of the determining factor of the choice of judgeship. The President’s powers are limited because the Senate as to approve all judgeship nominees.” (Murphy and Pritchett 2007). At the district level when an attorney applies for judgeships the names go into a ballot. Notice is given to the public to view the applicants to give their opinion about the applications. The Judicial Council then takes the results and interviews the most highly rated candidates and sends the top two recommendations to the Governor of the State.

Are judges and the process by which we choose judges political? Of course it is! We must consider the relationship between the voting process and the appointment process to determine to what extent is there politics involved. “If one puts Democrats together the percentage of liberal votes by judges climbs to 62%.” (Spill and Bratton 2004).  I would call that political. “There is no significant difference found with party affiliation with criminal trials and respective party nomination. Since the Democrats vote against the liberals about 48% of the time in the Court of Appeals these results distinguish there is an already present bias in that circuit of the court.” (Spill and Bratton 2004).  The process is political because a candidate is nominated based on his political standing in the community and may not always be nominated based on his merits. Hence a more qualified candidate may be overlooked simply because he is not well-liked. This especially happens within the smaller rural communities. In the federal courts the system is very political because the judgeships are for life tenure which needs to be amended. There is four to six year tenure for district and state judges which are very fair just in case there needs to be a change for the best interests of the public. It is all but impossible to relieve the services of a U.S. Supreme Court judge unless he commits a criminal offense. The politics is often played to remove the judges by attempting to take away their retirement and tenure. The best angle would be to change the policies regarding their appointment.

When a litigant takes a case to the U.S. Supreme court it is because he has exhausted the lower courts and finds that the lower courts have erred in their judgments and wants the Supreme Court judges to find something in the case ‘unconstitutional’ or a violation of the law or their individual rights. The classic case where ‘judicial review’ was established was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Many amendments to the Constitution are very vague and the judges attempt to restructure the U.S. Constitution by reinterpreting them and pass statutes to restructure the Constitution. One of the most highly controversial amendments is the Second Amendment with reference to ‘the right to keep and bear arms’. There has been attempt to restructure this amendment several time by federal lawmakers stating that when it was formed the right to bear arms was only given ‘during times of militia’ for protection. Gun law activists have been able to strike down peacefully through demonstrations the attempts to prevent civilians from carrying guns. These types of situations are always political because our country is based upon the United States Constitution and particularly the Bill of Rights. We are supposed to be a ‘democratic nation’. There are many instances where a person’s rights are violated and without redress to fight Human Rights violations at the Supreme Court level we would be treated like citizens of a ‘communist country’. The law is vague in order to protect the politicians and the judges are there to interpret the law in order to protect the best interests of the citizens. When found the law is vague the law cannot be applied. It is up to the prosecution to prove their case either beyond a reasonable doubt in a criminal trial or beyond the preponderance of a doubt in a civil trial. Judges have many ‘discretionary’ powers which enable them to have political control over our lives. It is the hope of the people to minimize the effects of these discretionary powers by passing statutes to protect our rights such as Human Rights Acts and amending these further to keep our best interests at stake. Since the Supreme Court is the highest court of the land there is not much discretion that the judges can express. They must apply the law. If it is found there is any illegality, impropriety or irrationality with a case then a case has standing on the grounds for dismissal at the federal level.

Court decisions are very political at the state level because it is through case law precedent that the federal laws are formed. Judges make decisions based on prior court cases. They apply the law based on prior decisions. An amendment to the Constitution can never be changed however statutes can be applied through precedent. In Baker v Carr the Supreme Court allowed unrepresented voters to have their districts to be redrawn by federal courts.  For this reason is why you see people rallying at the steps of the Pentagon or the steps of the White House for major issues such as abortion, privacy rights, gun control laws, amongst other issues.

When the Supreme Court lies down the law it is assumed it is the land of the law hence no one really tries to change it thus relevant change might start at the lower levels of the court. Why? Because the Supreme Court makes laws based on the decisions of the lower court (precedent) and the only way to change the decisions of the Supreme Court is to change the decisions of the lower courts. Making decisions based solely on the law rather than on political motivations is the key to changing the political influences in the legislature. Often judges make decisions based on ‘conventions’ which are discretionary and try to call it the law. Against what Justice O’Conner recommended, having open elections for judges at all levels is the key to ensuring judges do not become too powerful. Eliminating life tenure of Supreme Court judges and justices might be another avenue to pursue.

Works Cited

Epstein, Lee Advice and Consent: The Politics of Judicial Appointments. New York: Oxford University Press. 2005.

Murphy and Pritchett Limitations on Judicial Power New York: Mac Graw and Hill, 2007.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

Baker v. Carr, 369 U.S. 186 (1962)

Spill, Rorie and Bratton, Kathleen Moving Up the Judicial Ladder: The Nomination of State Supreme Court Justices to the Federal Courts Vol. 32, No. 2, 198-218 (2004)