Change the Federal Judiciary by Constitutional Amendment?

Liberty Justice
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Folks, let’s take up the subject of the federal judiciary.

Do you think the federal judiciary is working in the manner intended by those who created the Republic? In answering, please state what you think the founders intended then state what you think of its function today.

Irrespective of the founders’ intent, do you think the judicial branch should be an active or passive part of government? Why? Do you think that today it is active or passive?

I will defer my thoughts on the matter for now. I raise these questions because it appears that there me a looming constitutional crisis over court actions to curtail the presidency of Donald Trump. But, rather than take on the issue of personality and political dogma as the subject, please, let’s make the discussion about the role of the judiciary as intended, as practiced historically, and as it performs today.

The discussion will, I hope, lead to a common opinion on the question posed in the subject line.

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Shouldn’t require a Constitutional Amendment.

Article III, Section 1 of the Constitution, reads:

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 shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

So it defines the Supreme Court but then grants Congress the power to create the lower level courts.

What Congress creates, Congress can change or take away. They’ve done so in the past, by simply eliminating a court where the judge has overstepped their bounds. Congress also holds the power of impeachment, where they can remove judges.

The problem that exists today is the courts have overstepped their Constitutional grounds - the United States Government is supposed to have 3 co-equal branches, Legislative, Executive, and Judicial. As such no one branch has power over the other, except in the law (Legislative creates the laws, Executive Implements the laws, and the Court Enforces the laws).

In the current cases of rogue judges, they need to be brought into check by the higher courts (and ultimately the Supreme Court). Congress could pass a law requiring a minimum financial guarantee by plaintiffs seeking to halt executive branch activities, and likewise all injunctive relief should be heard by a multi-member panel, and not a single district judge (unless the relief is only in that judge’s district)

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I agree that it SHOULD not require a constitutional amendment, but I’ve now lived in 9 different decades and have watched as congress has blown in the wind, as have the courts, changing how what should be a consistent interpretation of law is enforced. Because it is much more difficult to amend the constitution - more like writing in concrete as opposed to writing in sand at the shore where waves wash and obliterate what is written - the idea of changing the constitution should be considered.

That aside, though, the subject line was meant to be a provocative attention getter that would draw attention and response to the 2 principle questions.

You addressed neither.

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In regards to the subject line, yes, that’s exactly what I was addressing, but if you want, I can certainly delve into the two questions you asked.

The current state of the Federal Judiciary has been corrupted (by both sides honestly), allowing politics to drive the selection of judges instead of their record of supporting and defending the Constitution. Just read the very oath they are required to take upon confirmation to their job, as it sets expectations:

I, ______________ [insert federal judge’s name ], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all duties incumbent upon me as _______________ [insert office ] under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

So, let’s break it down - “without respect to persons”, we’ve seen countless times that they go light on people from one party, while are heavy handed on the other.

“and that I will faithfully and impartially discharge and perform all duties incumbent upon me” Are they impartial? No, many have donated to a political party, others have family members that are in political positions that would benefit from a ruling in a certain direction - those judges should recuse themselves to demonstrate impartiality, but they’re out to make a name for themselves, so they won’t.

“and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic” As we’ve seen this week with the judge blocking the deportation of Venezuelan Terrorists, they clearly aren’t supporting and defending the Constitution, especially from enemies.

“that I will bear true faith and allegiance to the same” for some of these judges their faith and allegiance is to the political party of the President that nominated them, not the Constitution.

“without any mental reservation or purpose of evasion” as mentioned above, the lack of recusing themselves for a conflict of interest is certainly considered evasion.

I could go further, but you get my point, it is not working neither as the Founders intended, nor as Congress intended. It is that reason that the judges are under the constant verbal attack from both sides (and not all of those attacks are justified), and the fact that some are talking impeachment over violating the aforementioned oath of office is a serious tell.

There are parts of the Judiciary that will always be active, as that is part of the nature of the “co-equal” branches of Government, and the checks and balances contained therein (much like I outlined in my earlier reply).

The problem is that some of the judges on the bench today see political motivation as a reason to exceed their authority, and that is where they have gone too far.

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Irrespective of the founders’ intent, do you think the judicial branch should be an active or passive part of government? Why? Do you think that today it is active or passive?

In my opinion, the judiciary should be – no, must be – a passive participant in government. If judges are to active, they should be elected. There are many very good reasons why judges should not be chosen politically, independence of political pressure being a necessary prerequisite to dispassionate legal review and opinion. The very nature of their selection and approval argues for a passive role in government both in making laws and in carrying them out.

There is a case to be made for the lack of an ultimate check or balance on decisions of justices and on their behavior and for the lack of the means to remove them from office – offices held for life during good behavior – also argues for a passive role. Further, in my opinion, any acts or opinions on the part of judges that are based in or influenced by political issues, should be prima facie evidence for automatic recusal. “Judge shopping” has no place in the legal system. It can only exist when judges show partisan bias.

As we see it in practice today, a single appointed - not elected - individual can thwart the will of the people as expressed through elections. On its face, that offends my sense of fair play. On the other hand, I see the need for a means to check, balance, and rein in the executive or the legislative branch when it overreaches and acts illegally. The question, then, becomes how to avoid the one and achieve the other.

Given the foregoing, it should be apparent that I believe the federal judiciary is active and that it should not be.

It is Article III of the US Constitution that creates the judicial branch. Given the power that it conveys, very little is written in Article III. Given that it was the third branch created by the founders and that its description is so brief (six (6) paragraphs in 3 sectons), I believe that the founders deemed it to be of lesser importance and meant it to have more limited scope of power than the other two branches.

Having read (and re-read) Article III in light of the egregious practice of ‘lawfare’, I believe that a fourth section would benefit the nation and clarify the role of judges in governing our nation and would posit the hereinunder as a constitutional amendment to Article III:
Section 4
The judicial Power as it pertains to issues of injunctive relief against acts of the executive or legislative brances, shall first be heard and adjudicated by no fewer than five (5) legally appointed and sworn judges or justices. Those five (5) judges or justices shall be drawn from a pool of all legally appointed active and sworn district court judges exclusive of magistrate judges, judges on senior status, maritime judges and others with limited authority, without favor or privilege. For injunctive relief to be granted, a majority of the judges or justices must agree that relief is warranted under law, without regard to political or other pressure or predeliction.

The judicial Power, as it pertains to issues of injunctive relief against acts of the executive or legislative branches, shall be exercised within 30 calendar days of filings for relief including scheduling, hearing argument, deliberating, and rendering opinion. The judicial Power must not be used to thwart or even to delay the legitimate acts of those duly elected and sworn in either the executive or legislative branches of government because the people’s will as expressed through elections must not be thwarted or delayed.