“Of the three powers […], the judiciary is next to nothing.”
– French judge and political philosopher Montesquieu as quoted in Alexander Hamilton’s Federalist No. 78 papers.
James Madison is commonly referred to as the “Father of the Constitution” because of his role in the document’s drafting, its ratification, and for his crafting of its first 10 amendments…what we know as the Bill of Rights. The Constitution, which replaced the Articles of Confederation, was signed on September 17, 1787 by delegates to the Constitutional Convention in Philadelphia, and it established America’s national government and fundamental laws along with guaranteeing certain basic individual protections and rights for American citizens.
The Constitution does not lay down the basics for what is called a “democracy” for our Founders and Framers knew well that “democracy” was the basis for “mob rule” not for the rule of law. And while some say the Constitution is a “living breathing document”…believing it to be open-ended and flexible in its content thus being easily subject to change…know it is not for that which is “living” and “breathing” can easily “die.” And many who believe that the Constitution does indeed “live” do so solely in an attempt to twist its words to support whatever agenda they wish it to support based upon their interpretation of its words determining the meaning that matters to them alone.
If the Constitution were to “die”…discarded if you will…chaos would surely ensue, but that does not mean the Constitution cannot be amended to allow for change. Remember, the Constitution’s Framers were men of great vision who designed the Constitution to “endure,” but in order for it to “endure” as the times changed, Article V was included. Describing in detail the process by which the Constitution could be amended…amended not discarded…Article V states, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof…”
And know that the Constitution has already been amended 27 times since its ratification and I believe it’s time for it to be amended again…this time regarding lifetime appointments to the Supreme Court.
The U.S. Supreme Court is the only federal judicial body established by the Constitution itself as per Article III Section I which states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour…”
And it’s the two simple words “good Behaviour”…whose meaning in today’s political world is quite ambiguous…for when did “good Behaviour” turn into meaning “for life” especially in regards to an appointment that can only be terminated by an act of impeachment for misconduct, voluntary retirement or death…and know that to date no Supreme Court justice has ever been impeached.* And while the vast majority of legal scholars interpret “good Behaviour” to mean a lifetime appointment for all federal judges…which Supreme Court justices are…they do so by claiming said appointment is a fundamental requirement for the separation-of-powers doctrine that is the Constitution’s basis. Yet the fact remains that nowhere in the Constitution does it say the actual words that justices are to be appointed “for life.”
Word semantics perhaps, but the fact is that while “good Behaviour” applies to an action it does not apply to a time frame thus basically being open-ended do to its very ambiguity. And dare we forget that one person’s “good Behaviour” can be another persons bad…even regarding the adjudication of the law. And because the Constitution deals solely in the law, I would be safe in assuming that “good Behaviour” would mean how judges and justices interpret, present, decide, and adjudicate the law as based upon the Constitution’s words and not upon their personal political ideologies held.
But if a decision was made based upon partisan politics, I believe, that would qualify as being “bad” behavior with today’s activist judges like Elena Kagan being a perfect example. But even that leaves open the question of how many infractions of “good Behaviour” are allowed before a justice can be impeached…is it one, two, or three strikes you’re out? Our Constitution’s framers never addressed that issue leading me to believe that Article V was purposely written as a way to address any ambiguities, thus making it as important as Articles I and II.
But where exactly did the term “good Behaviour” originate and why is it in the Constitution to begin with instead of the words “for life”…the very two words that would have set a much needed definitive time frame for such presidential appointments.
The answer to that has to do with the fact that the Constitution’s Framers wanted Supreme Court’s justices (and federal judges) to be protected from political corruption in regards to running for and being elected to public office. They also wanted to make sure that an incoming president did not remove a justice based solely upon their party’s politics, hence “good Behaviour” no matter which party holds office…in other words “impartiality.”
But it’s the words “good Behaviour” themselves that has led me to personally believe that Supreme Court appointments were never intended to be “for life” per say, but were intended to be but one part in making sure that the Constitution “endured.” And how did the Framers intend this “enduring” to take place…by deliberately leaving certain meanings and time frames open to interpretation thus allowing future generations to “amend” the Constitution if need be. “Amend” it yes but to do so NOT according to the politics of the times…for politics are fleeting at best…but “amend” it in regards to what we call the “human condition.”
We all know that with age comes wisdom…even Thomas Jefferson in his later years had the wisdom to see that he himself had made a mistake regarding the words “good Behaviour.” Thirty-three years after signing the Constitution he realized “good Behavior” was not just a political entity but an important part of said “human condition.” In fact, when putting to paper the 1776 Drafts of the first Virginia state constitution, Jefferson wrote that all judges were to serve during “good Behaviour” and that lower court judges could be removed by the highest court for breach of “good Behaviour.” Yet said thirty-three years later Jefferson complained that these provisions in the Virginia constitution had made judges “independent of the nation itself…[and] irremovable, but by their own body, for any depravities of conduct, and even by their own body for the imbecilities of dotage.”
In other words, Thomas Jefferson regretted what he signed after realizing the words “good Behaviour” were too open-ended regarding the length of time a Supreme Court justice could serve. The Constitution’s signers never took into account what happens to one as they physically age. Thomas Jefferson finally did but it was too late no matter his belief that now there should be age limits on justices as per his words the “imbecilities of dotage.” Jefferson realized that with old age not only comes wisdom but physical infirmities and mental ramifications as well.
Remember that at the time of the Constitution’s signing people lived on average 40 or 50 years…if even that. True oldsters like Benjamin Franklin were a rarity, but those like Jefferson had enough “vision” to know that as life expectancy increased so too would the tenure of justices. And Jefferson did well by putting his thoughts about the “imbecilities of dotage” in writing for now there would be no chance of misinterpreting his intent regarding “good Behaviour” or so he thought.
And with Jefferson’s intent being clear, it’s time we take his intent and put it to good use for we now have sitting on High Court both Elena Kagan who “legislates” from the bench, and Ruth Bader Ginsberg whose advanced age brings with it a visual perception of feebleness…what Thomas Jefferson referred to as the “imbecilities of dotage”…and a true lack of common sense.
But first Elana Kagan. Her removal should be a simple “can do” for Justice Kagan outwardly legislated from the bench regarding her decision on President Trump’s temporary travel ban. Basing her negative ruling not on Constitutional law but on her freely given admission that she was “somewhat” influenced by then candidate Trump’s tweets regarding muslims and others, Kagan is a prime example of one’s personal politics coloring one’s Supreme Court decision. A true impeachable offense if only someone in Congress had the guts to draft the needed articles of impeachment.
Now as for Ruth Bader Ginsberg. The question here is not just one of chronological age but of when one is deemed too old…to feeble…to make critical decisions that affect us all. And while some zero in on the issue of physical health in regards to Justice Ginsberg…which includes the usual for someone her age loss of vision and hearing coupled with a deterioration in motor skills…and literally the ability to stay awake…others simply say that at 85 years of age she simply needs to step down as logic dictates that at such an advanced age critical cognitive skills greatly diminish as well, and that includes common sense. And on this I agree for anyone in their “right mind”…as in anyone who thinks clearly…could see that when one shows signs of the “imbecilities of dotage”…as has Justice Ginsberg…it is time to put pride aside and step down.
Common sense as we all know is the the bane of many, but in Justice Ginsberg’s case her diminishing capacity for common sense has recently manifested itself in the public venue for no one thinking clearly at 85 states for public consumption, “I’m now 85. My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years.”
“At least five more years”
as in if Ginsberg reaches 90 she still might not retire for her goal seems to be not to do right for our country but to beat Justice Stevens as to who was the oldest justice to retire. Talk about pride and unabashed arrogance coupled with a political agenda that is blatantly obvious for Justice Ginsberg also “signaled” earlier this year that if fellow Democrat Hillary Clinton had won the presidency in 2016, she would likely have announced her retirement by this past spring. And that alone showed “bad” as opposed to “good Behaviour,” and should have resulted in Ginsberg being immediately removed from the High Court for a woman as learned as she in constitution law, and if in her “right mind,” would have known that such a statement is truly political in nature as it goes against political “impartiality” which all justices are required to show.
And blatant political bias coupled with a true lack of common sense again manifested itself in “bad” behavior when last October, Justice Ginsberg was asked about possible retirement. Saying, “My answer is as long as I can do the job full steam, I will do it” …I guess “full steam” means to this 85-year old justice that it’s okay to fall asleep on the job.
But Justice Ginsberg’s ultimate act of “bad” behavior in regards specifically to political bias were these words said to Molly Smith, the director of the play ‘The Originalist’ (a play based upon the life of Justice Antonin Scalia), “My dear spouse would say that the true symbol of the United States is not the bald eagle–it is the pendulum. And when it goes very far in one direction you can count on its swinging back.” And what is the pendulum but a metaphor for the political make-up of the High Court which right now has the pendulum swinging to the right…as in being more conservative in its make up. But Justice Ginsberg obviously feels that if she can fend off retirement long enough to deny President Trump his third nominee, that she would be the political advocate who helped swing the pendulum back to the left…a sad end to what was once an illustrious career.
There can be no other explanation than that for an 85-year old woman who knows well that she is no longer physically able or mentally astute enough to “impartially” carry on with the honorable task of which she was charged and who is not exhibiting the “good Behaviour” that is constitutionally required of those who sit on the High Court, should immediately be removed from the bench either through impeachment or by being given the chance to “save face” by retiring…something that is so long overdue.
* For an interesting take on the history of aged Supreme Court justices see Boston Globe Columnist Jeff Jacoby’s 2005 article When justices refuse to retire
Copyright @ 2018 Diane Sori / The Patriot Factor / All Rights Reserved.
For more political commentary please visit my RIGHT SIDE PATRIOTS partner Craig Andresen’s blog The National Patriot to read his latest article Ocasio-Cortez…Nothing But a Facade
By: Diane Sori / The Patriot Factor / Right Side Patriots on American Political Radio
Today, Friday, August 3rd from 7 to 9pm EST on American Political Radio, RIGHT SIDE PATRIOTS Craig Andresen and Diane Sori discuss ‘Ruth Bader Ginsberg…Showing the “Infirmities of Dodage”‘; ‘Ocasio-Cortez…Nothing But a Facade’; and important news of the day.
Hope you can tune in at: http://listen.samcloud.com/w/73891/American-Political-Radio#history